On Sept. 29, 2021, the National Labor Relations Board (NLRB) general counsel
issued General Counsel Memorandum GC 21-08, in which she announces that she
believes certain college student-athletes are “employees” under the National
Labor Relations Act (NLRA).
Memorandum GC 21-08 sets forth a new prosecutorial position that “certain
Players at Academic Institutions” are employees under the NLRA; are entitled to
exercise their Section 7 rights to self-organize, bargain collectively and
engage in other concerted activities; and are protected under Section 8 from
retaliation for and interference with exercising these rights. Under the GC’s
new position, a private institution of higher education could violate the NLRA
simply by leading student-athletes to believe they are not entitled to the
NLRA’s protections. The memorandum directs the NLRB field offices to submit
cases concerning the misclassification of “Players at Academic Institutions” to
the NLRB’s Division of Advice for further direction on whether to issue a
The memorandum relies on the definition of employee in Section 2(3) of the
NLRA as well as on the common-law agency doctrine for what constitutes an
“employee” — a person “who perform[s] services for another and [is] subject to
the other’s control or right of control.” According to the memorandum,
scholarship football players at NCAA Division I Football Bowl Subdivision and
other similarly situated players at private universities qualify as employees
- The athletes play a sport (perform a service) that generates a large profit
for the university and increases student applications and financial donations.
- The athletes receive significant financial support in the form of
tuition, fees, room, board, books and stipends covering additional expenses
such as travel and childcare.
- The NCAA controls many conditions of athletics (e.g., mandating
maximum numbers of practice and competition hours, scholarship eligibility,
limits on compensation and setting academic standards).
- The schools control the means and manner of players’ work (e.g.,
enforcing minimum GPA requirements, penalizing players for infractions of
sports-related rules, and maintaining detailed daily itineraries regarding
the players’ activities and training).
The NLRB’s GC supports her new position with the U.S. Supreme Court’s recent
decision in NCAA v. Alston; the NCAA’s updated name, image and likeness (NIL)
rules; and student-athletes’ recent engagement in collective action on social
justice issues. The memorandum relies heavily on Justice Brett Kavanaugh’s
concurrence in Alston, questioning whether schools can “continue to justify not
paying student-athletes a fair share” of their billions of dollars in revenue
and suggesting that student-athletes “engage in collective bargaining.”
Additionally, the NCAA suspended its NIL rules to allow student-athletes to
profit from endorsements, autograph sales and public appearances. Finally, the
memorandum asserts that student-athletes have been taking collective action on
social justice issues, which directly concerns terms and conditions of
employment and thus constitutes protected concerted activity.
Notably, the NLRB GC is responsible for the investigation and prosecution of
unfair labor practices and for the general supervision of NLRB field offices in
the processing of cases under the NLRA. She does not decide cases on the merits
but decides which cases the NLRB field offices will prosecute.
This new policy raises several questions that will play out on college
campuses. First, will the GC’s position lead to student-athletes being
classified as employees under other federal labor and employment statutes such
as the Fair Labor Standards Act (FLSA) or Title VII of the Civil Rights Act of
1964? Many of these statutes rely, at least in part, on the question of “the
right to control” the worker in defining who is covered. Currently, these issues
are being litigated in federal courts, but both the 7th and 9th U.S. Circuit
Courts of Appeals have ruled that student-athletes are not employees of the NCAA
or their athletic conferences for purposes of the FLSA.
Second, what schools and athletic conferences does this new policy cover? The
NLRB’s jurisdiction covers only private employers, meaning that public schools
would not be directly covered as employers. Some states include provisions in
recently enacted NIL legislation that specifically prohibit college athletes
from pay-for-play or specify that college athletes are not “employees.”
Ultimately, however, these distinctions may not matter. The NLRB’s GC in a
footnote explicitly warns that it may assert jurisdiction over the NCAA and an
athletic conference, finding joint employer status with certain member
institutions, including member institutions that are public schools.
As a result of the NLRB GC’s new interpretation, student-athletes likely will
file unfair labor practice complaints that may take years to fully resolve. In
the meantime, generally extending the status of “employee” to student-athletes
may have other far-reaching consequences, including:
- Affecting student-athletes’
eligibility for federal financial student aid.
- Requiring international student-athletes on visas to confront complex issues
raised by employment restrictions that may affect their status in the country.
- Forcing schools to
wrestle with Title IX obligations respecting the classification and treatment of
female and male student-athletes as employees.
Academic institutions should prepare to address the vast ramifications of
potential employment status on behalf of themselves and for their students.