The General Counsel of the National Labor Relations Board (NLRB) issued a Guidance Memorandum last week establishing her position that certain players at academic institutions are employees as defined by National Labor Relations Act (NLRA).  If collegiate athletes are protected as “employees” under the NLRA, then these athletes would have rights to organize and join labor unions, the schools would be required to bargain with athletes’ unions, and the athletes would be protected from retaliation when they engage in concerted activities to improve the terms and conditions of employment.

The Memorandum has no binding legal effect, but it lays out the General Counsel’s view that certain players at academic institutions are employees as defined by the statutory language of the NLRA and by policies the NLRB has adopted over time.  The NLRA defines employee broadly, subject only to a few, specific exceptions, none of which include university employees, football players, or students.  In addition, the Memorandum concludes that principles of agency law also support the proposition that certain players are employees if they 1) perform services for the school or the NCAA, 2) they are subject to the school’s or NCAA’s control (in the form of minimum GPA requirements, scholarship eligibility, etc.), and 3) they are compensated for their services by their receipt of scholarships for tuition, room, board, books, and stipends for additional expenses like travel and childcare.

In short, according to the General Counsel, scholarship athletes clearly come within the NLRA’s broad statutory definition of employee and meet the common-law test.  Therefore, the Memo states, these players should be protected when they act in concert regarding the terms and conditions of their employment.

In addition to these protections, the Memo notes that misclassifying these players as mere “student-athletes” and leading them to believe that they are not entitled to NLRA protections, has a chilling effect on the exercise of rights under the NLRA.

It is unclear what impact the General Counsel’s view will ultimately have on the legal relationship between scholarship athletes and the institutions for whom they play, but this is an area that is sure to get more attention.  Institutions should be cautious when addressing potential concerted activities by scholarship athletes or other players who meet the General Counsel’s definition of employee.  Stay tuned as we continue to monitor these developments.  As always, please reach out to any member of the McNees Labor & Employment Group with any questions.