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The general counsel of the National Labor Relations Board issued a memorandum on Wednesday that says she views college athletes as employees of their respective schools under the National Labor Relations Act.
The move sets the stage for a renewed effort to organize private school athletes – most likely football or men’s basketball players – into unionized collective bargaining units that could seek to set various working conditions, including compensation.
USA Today reports that previous efforts occurred with football players at Northwestern University in 2014 and 2015, but that ended when the National Labor Relations Board unanimously decided not to accept jurisdiction over the matter.
The NLRB said at the time it did not have jurisdiction over public schools and USA Today reports that by addressing the Northwestern effort, the agency would run counter to the National Labor Relations Act’s charge that the board create stable and predictable labor environments in various industries.
NLRB general counsel Jennifer Abruzzo wrote in a Wednesday memo that the environment around college sports had changed considerably since the Northwestern case.
“There have been significant developments in the law, NCAA regulations, and the societal landscape, that demonstrate that traditional notions that (college athletes) are amateurs have changed,” she wrote. “These developments further support the conclusion that (college athletes) are employees under the” labor relations act.
The U.S. Supreme Court ruled unanimously against the NCAA in NCAA v. Alston in June, marking one of the most significant sports law decisions in history. The Justices concluded that the NCAA and its member schools and conferences are in violation of Section I of the Sherman Antitrust Act, affirming a district court judge’s decision that the NCAA violated antitrust law in 2020 by placing limits on the education-related benefits that schools can provide to athletes, as OutKick previously reported.
Abruzzo cited the Supreme Court’s unanimous ruling against the NCAA in the Alston antitrust case, and she also cited changes to the NCAA rules regarding athletes’ ability to make money from their name, image and likeness.
She mentioned college athletes’ activism, which she wrote in the memo has “sky-rocketed along with the national attention to social justice issues following the murder of George Floyd and concerns regarding health and safety in the face of the Covid-19 pandemic.
“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,” Abruzzo wrote in the memo. “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.”
The full memorandum can be read here.