On September 29, 2021, Jennifer A. Abruzzo, issued a memorandum to all regional directors of field offices relating to the rights of “Players at Academic Institutions”. Ms. Abruzzo refused to call college athletes student-athletes, as there are commonly known, because the term student-athletes “was created to deprive those individuals of workplace protections.” The memorandum concludes that “Players at Academic Institutions perform services for institutions in return for compensation and subject to their control. Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.” Additionally, Ms. Abruzzo stated “certain Players at Academic Institutions are employees under the [National Labor Relations] Act and are entitled to be protected from retaliation when exercising their Section 7 rights.”
In addition to the findings in the Northwestern University case, the memorandum points to three (3) circumstances that favor rights for “Players at Academic Institutions” under the NLRA: 1) the United States Supreme Court’s decision in NCAA v. Alston and, specifically, Justice Kavanaugh’s concurring opinion indicating many of the “NCAA’s remaining compensation rules” violate antitrust laws and a possible alternative would be to allow “Players at Academic Institutions” to “engage in collective bargaining;” 2) the NCAA’s announcement of suspension of rules prohibiting “Players at Academic Institutions” from accepting compensation for the use of their names, images, and likenesses; and 3) activism among “Players at Academic Institutions” including protests involving the murder of George Floyd and concerns regarding health and safety in light of the COVID-19 pandemic.
The memorandum, in conclusion, states:
In sum, it is my position that the scholarship football players at issue in Northwestern University, and similarly situated Players at Academic Institutions, are employees under the Act. I fully expect that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, that I will be taking that legal position in future investigations and litigation under the Act. In addition, it notifies them that I will also consider pursuing a misclassification violation.
Ms. Abruzzo indicated the appropriate theory of liability is a joint employer theory, because “Players at Academic Institutions” are “subject to the control of, the NCAA and their athletic conference, in addition to their college or university….”
It is noteworthy, that the NLRB decided against exercising jurisdiction in the Northwestern University matter for the following reasons:
[T]hat asserting jurisdiction in this case would not serve to promote stability in labor relations. Our decision today is limited to the grant-in-aid scholarship football players covered by the petition in this particular case; whether we might assert jurisdiction in another case involving grant-in-aid scholarship football players (or other types of scholarship athletes) is a question we need not and do not address at this time.
Processing a petition for the scholarship players at this single institution under the circumstances presented here would not promote stability in labor relations. Moreover, recent changes, as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future.
This conclusion was reached in large part because some states have laws that prohibit collective bargaining by public employees (i.e., athletes at public institutions). These statutory restrictions do not apply to athletes at private institutions. On May 27, 2021, however, Senators Chris Murphy and Bernie Sanders introduced the College Athlete Right to Organize Act, which would permit athletes at both public and private institutions to organize and collectively bargain.
If athletes organize and are granted authority to collectively bargain under a joint employer theory, athletes would be permitted to negotiate mandatory subjects of bargaining with the NCAA (and affiliated conferences and universities) for wages, hours, and terms and conditions of employment. In turn, the NCAA’s antitrust exposure would be greatly reduced, because the nonstatutory labor exemption to antitrust claims would likely apply (see Mackey v. NFL – declining to apply the nonstatutory labor exemption) as we have seen applied for many years in professional sports antitrust matters. Although it would certainly be a herculean task to negotiate the first collective bargaining agreement (and subsequent agreements), it would likely provide some level of relief from the constant barrage of expensive and time-consuming antitrust lawsuits.