NLRB General Counsel Sends Strong Message Many Fellowship Athletes Are ‘Employees’ | Steptoe & Johnson SARL

On September 29, NLRB General Counsel Jennifer Abruzzino published Memorandum GC-21-08, in which she explained her position that the NLRB will consider many scholarship athletes to be “employees” under the National Labor Relations Act (the Act). To some extent, this is not a big surprise, given that in 2017 former NLRB General Counsel Richard Griffin wrote in GC-17-01 that Northwestern University scholarship football players were employees under the law. However, the arguments in support of Jennifer Abruzzino suggest that the board can take a much broader view of scholarship athletes who are employees.

Abruzzino has made it clear that the NLRB will treat scholarship football players from private schools in the I Football Bowl Subdivision as employees. (The law does not apply to public entities). But she also wrote:

“There are undoubtedly other sports which provide substantial financial benefits to colleges / universities and which involve scholarship athletes who are under the significant control of schools and the NCAA. However, in the absence of a full regional investigation, such as the one undertaken regarding the petition filed at Northwestern University, we cannot conclusively determine the employee status of other types of student-athletes in the cases that may arise in the future. ”

Obviously, the door is open for other athletes to argue that they are employees under the law as well. Abruzzino’s memorandum states that the Board will consider these factors when making future decisions:

  • The amount of compensation provided by the stock exchanges.
  • The degree of control over athlete sports activities, school hours, accommodation, etc.
  • The extent to which the sporting activity provides a financial benefit to the school and can therefore be characterized as a “service” provided to the school.

Another reason for concern about the memorandum relates to enforcement. Colleges and universities might be tempted to think that this renewed emphasis on the status of student-athletes as employees will only become a real problem in the unlikely event that the athletes attempt to form a union. This is not the case. The memorandum emphasizes that the protections offered by the Act apply to concerted activities, and she gave examples such as expressions of support for social justice issues and advocating for changes in concussion protocols. In short, when there is an employee status, employees can speak up in a concerted manner on a multitude of issues.

Finally, Abruzzino also stressed that the Council will be ready to pursue cases in which it finds that colleges / universities have not correctly classified student-athletes as employees. Indeed, she has advised the colleges / universities that they are supposed to deal with this problem now, and failure to do so will have consequences. Standing back and hoping that this problem gets overlooked is not a viable response to the measures the Council appears ready to take.

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