On Sept. 29, 2021, Jennifer Abruzzo, General Counsel for the National Labor Relations Board (NLRB) issued Memorandum GC 21-08 establishing that “certain Players at Academic Institutions are employees under the [National Labor Relations] Act (NLRA)” and have the right to unionize.
In the memo, Abruzzo notes that the NLRA adopts a very broad definition of the term “employee,” which does not expressly exclude “university employees, football players or students”. (Note: the NLRA does not apply to the public sector.) She argues, “Football players at Division I FBS private colleges and universities, and other similarly situated Players at Academic Institutions, are employees under the NLRA” because they:
In addition, the memo more broadly signals an expansive view of joint employer activity and independent violations for misclassifying workers. Further, it would also, by definition of employee, extend Section 7 rights and protections to college athletes.
To further support its conclusion, the memo also cites:
The memo does not constitute an official change in the relationship between student athletes and their institutions but it does provide insight into the way the NLRA may be applied in the event of future labor conflicts. The new guidance certainly raises questions in regards to its practical application and creates additional challenges for institutions as they continue to adapt to the rapidly changing landscape within collegiate athletics.
We can help your institution take a proactive approach to evaluate the current state of your policies, processes and internal controls related to athletics and the student athlete experience to identify opportunities that align with potential legislative changes.
For more information, or to learn more about how Baker Tilly’s higher education specialists can help, contact our team.