On September 29, NLRB General Counsel Jennifer Abruzzo issued Memorandum GC-21-08, in which she explained her position that the NLRB will consider many scholarship athletes to be “employees” under the National Labor Relations Act (the Act). To a certain extent this is not a great surprise, given that in 2017 former NLRB General Counsel Richard Griffin wrote in GC-17-01 that scholarship football players at Northwestern University were employees under the Act. However, Jennifer Abruzzo’s supporting arguments suggest that the Board may take a much more expansive view of which scholarship athletes are employees. 

Abruzzo made it abundantly clear that the NLRB will treat scholarship football players at private Division I Football Bowl Subdivision schools as employees. (The Act does not apply to public entities). But she also wrote: 

“There are undoubtedly other sports that provide substantial financial benefit to colleges/universities and that involve scholarship athletes who are under significant control by the schools and the NCAA. However, in the absence of full Regional investigation, like the one undertaken with respect to the petition filed in Northwestern University, we cannot conclusively determine the employee status of other kinds of student athletes in cases that may arise in the future.” 

Obviously, the door is open for other athletes to make the argument that they are also employees under the Act. Abruzzo’s memorandum indicates that the Board will examine these factors when making future determinations:

• The amount of compensation provided through scholarships.

• The degree of control over athletes’ athletic activities, academic schedules, living accommodations, etc.

• The degree to which the athletic activity results in financial benefit to the school, and thus can be characterized as “service” provided to the school.

Another reason for concern over the memorandum has to do with enforcement. Colleges and universities might be tempted to think that this renewed emphasis on the status of student-athletes as employees will only become a real-world issue in the unlikely event that the athletes attempt to form a union. That is not the case. The memorandum emphasizes that the protections afforded by the Act apply to concerted activity, and she gave examples such as expressions of support for social justice issues, and advocacy for changes in concussion protocols. In short, where employee status exists, employees can in concerted fashion speak their minds about a host of issues. 

Lastly, Abruzzo also emphasized that the Board will be poised to prosecute cases in which it finds that colleges/universities have failed to properly classify student athletes as employees. In effect, she has put colleges/universities on notice that they are expected to deal with this issue now, and that failure to do so will have consequences. Sitting back and hoping this issue passes by is not a viable response to the steps the Board appears ready to take.