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NLRB: Student athletes are employees


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NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions

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Today, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices providing updated guidance regarding her position that certain Players at Academic Institutions (sometimes referred to as student athletes), are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.

The memo further advises that, where appropriate, she will allege that misclassifying such employees as mere “student-athletes” and leading them to believe that they are not entitled to the Act’s protection has a chilling effect on Section 7 activity and is an independent violation of Section 8(a)(1) of the Act.

 

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This is administrative guidance which can change quickly based on a presidential election.  The courts will ultimately decide.

Labor and employment is a significant part of my practice.  But being in Texas, I very rarely deal with labor law (unions).  So I have no idea how a court would rule on whether a student-athlete is an employee for purposes of organizing and collective bargaining.

Edited by Johnny Sack
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Has the NLRA been amended? It sounds like this is an agency interpretation of what the Act means rather than a change in the Act. If so, the courts will ultimately say whether the agency's interpretation is correct.

 

Edit: this seems dubious to me. The law has not changed. The NRLA and college sports have co-existed for decades, and student athletes have never been deemed employees. If this memo is correct, then universities have been misclassifying student athletes for decades. Not impossible, but it strikes me as extremely unlikely.

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4 minutes ago, Royale with cheese said:

Unionization. Collective bargaining. Strikes. Yeah, that'll help college football. That's just what we need. Fuckin' government. Jesus H. Christ.

It's not the government that started this. As usual, look to whom will go the money.

Cui bonum?

Government in the form of the courts was the means to an end.

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2 minutes ago, txhorns said:

If college athletes are employees then wouldn't that extend down to high school athletes and even junior high athletes?

College athletes have been getting paid a very long time to perform labor that results in revenue for the athletic department. The haggling for decades has been how much they should get paid, not that they get paid (scholarships are payment).

What public high school athletes get paid?

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10 minutes ago, Johnny Sack said:

If players do start organizing, at that point I would be cool with just tapping out and going to nonscholarship athletics like the Ivy League.  Just have actual students who get it on their own academic merit play.

Yep.  100%.

Unfortunately, UT will not make such a move.  Too much $$$ on the line.

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6 minutes ago, Huckleberry said:

College athletes have been getting paid a very long time to perform labor that results in revenue for the athletic department. The haggling for decades has been how much they should get paid, not that they get paid (scholarships are payment).

What public high school athletes get paid?

The real good ones? 

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Unless you're credentialed in it, I guarantee that no one understands labor law in the United States and agency law. It's really frickin' complicated. Count me as one of the ones who aren't credentialed.

However, the Supreme Court in their arguments that lead to NIL, were stark in their assessment that the NCAA could not define amateurism in the way they've historically done so. The justices outright stated that the NCAA was an illegal cartel.

In this, the direction could not be more clear to the NLRB that student athletes would meet the definition of "employee" if considered without historical interference by the NCAA. After this, labor and agency law take over, and I'm completely clueless on that.

I'm not arguing this is good. I'm stating that the SCOTUS requires it.

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I grew up in Texas where unions were some sort of bogeyman. Unions will ruin your business, take all the money, leave, etc...

I have been a part of several different ones now, which is common in my field. Some were good, some were kinda useless. But I wholeheartedly support people's desires to band together and advocate for themselves. I don't get people who don't support that. I'm quite sure my employers were utilizing their extensive resources to drive down my pay. As I see, college athletes have had their value artificially deflated for a century now, and they should have every right to advocate for better working conditions. It means the end of the fictitious idea of a "student athlete", but that was always a ridiculous concept anyway. At least at the major college level.

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1 hour ago, RomaVicta said:

There are reasons I don't follow professional sports. It's purely mercenary no matter how much the fans want to believe there is something special about the uniforms their teams are wearing.

If that's the reason you don't follow professional sports, you shouldn't be following college sports, either.

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16 minutes ago, LOHorn said:

I grew up in Texas where unions were some sort of bogeyman. Unions will ruin your business, take all the money, leave, etc...

I have been a part of several different ones now, which is common in my field. Some were good, some were kinda useless. But I wholeheartedly support people's desires to band together and advocate for themselves. I don't get people who don't support that. I'm quite sure my employers were utilizing their extensive resources to drive down my pay. As I see, college athletes have had their value artificially deflated for a century now, and they should have every right to advocate for better working conditions. It means the end of the fictitious idea of a "student athlete", but that was always a ridiculous concept anyway. At least at the major college level.

The only problem is when the unions get too big, and you can't *not* join them to work in a field. 

In construction at least, unions are complete garbage. They will keep a crane operator sitting in a crane doing nothing all day because the union says he can't get out and do any other job. The ironworkers union and glazers they have in Austin are pretty much trash, companies from out of town that need extra men get them from there, and basically cycle through them daily or weekly because they don't know what they are doing or don't work. Not saying the SEZ and Dell Med School would've been finished on time if there was glazers employed by the contractors, but in Houston the glazers all stay with their companies for years and years and get really good (and fast). 

From my perspective Texas isn't anti-union it's just a "right to work" state where you never have to be in a union to work a specific job. I think that freedom to go either way is probably best for employers and employees. 

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24 minutes ago, LOHorn said:

I grew up in Texas where unions were some sort of bogeyman. Unions will ruin your business, take all the money, leave, etc...

I have been a part of several different ones now, which is common in my field. Some were good, some were kinda useless. But I wholeheartedly support people's desires to band together and advocate for themselves. I don't get people who don't support that. I'm quite sure my employers were utilizing their extensive resources to drive down my pay. As I see, college athletes have had their value artificially deflated for a century now, and they should have every right to advocate for better working conditions. It means the end of the fictitious idea of a "student athlete", but that was always a ridiculous concept anyway. At least at the major college level.

I think everyone should have the right to associate.  It is freedom.  Band together. So I do 100% support that.

I do not think the government should coerce businesses to negotiate with any bargaining unit.  They should be just as free to disassociate with groups of employees who organize and hire others.  

If the organizing employees truly have value, then they do not need the heavy hand of the government to coerce businesses.  Just my opinion.

 

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25 minutes ago, Johnny Sack said:

I think everyone should have the right to associate.  It is freedom.  Band together. So I do 100% support that.

I do not think the government should coerce businesses to negotiate with any bargaining unit.  They should be just as free to disassociate with groups of employees who organize and hire others.  

If the organizing employees truly have value, then they do not need the heavy hand of the government to coerce businesses.  Just my opinion.

 

Yeah, but people like you that have value probably don't have much need for unionization.

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2 hours ago, Johnny Sack said:

If players do start organizing, at that point I would be cool with just tapping out and going to nonscholarship athletics like the Ivy League.  Just have actual students who get it on their own academic merit play.

Yeah, the University of Texas is going to just light money on fire.

Sure.

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1 hour ago, Zeus said:

The only problem is when the unions get too big, and you can't *not* join them to work in a field. 

In construction at least, unions are complete garbage. They will keep a crane operator sitting in a crane doing nothing all day because the union says he can't get out and do any other job. The ironworkers union and glazers they have in Austin are pretty much trash, companies from out of town that need extra men get them from there, and basically cycle through them daily or weekly because they don't know what they are doing or don't work. Not saying the SEZ and Dell Med School would've been finished on time if there was glazers employed by the contractors, but in Houston the glazers all stay with their companies for years and years and get really good (and fast). 

From my perspective Texas isn't anti-union it's just a "right to work" state where you never have to be in a union to work a specific job. I think that freedom to go either way is probably best for employers and employees. 

that and unions tend to protect the lowest common denominator which obviously negatively impacts  the upside potential of their best employees.

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here come the lawsuits from non-athlete students over athlete-student behaviors

that is the 1,000,000 pound gorilla

the 999,999,999 pound gorilla is the lawsuits from other university employees when universities try and exempt athlete-student EMPLOYEES from the same codes of conduct and employment rules as non-athlete student EMPLOYEES

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5 minutes ago, ButtFumble said:

here come the lawsuits from non-athlete students over athlete-student behaviors

that is the 1,000,000 pound gorilla

the 999,999,999 pound gorilla is the lawsuits from other university employees when universities try and exempt athlete-student EMPLOYEES from the same codes of conduct and employment rules as non-athlete student EMPLOYEES

Great point because if there's one thing academia has definitely never had before it's one class of employees having different rules than another. 

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Fun fact - the National Labor Relations Act does not apply to public-sector employees.  So, the NLRB does not have jurisdiction over employees of the University of Texas at Austin, the University of Oklahoma, the University of Alabama etc.  It only has jurisdiction over private employees at colleges like Notre Dame, Stanford, Duke, Northwestern, Vanderbilt, etc.   

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4 minutes ago, field said:

Fun fact - the National Labor Relations Act does not apply to public-sector employees.  So, the NLRB does not have jurisdiction over employees of the University of Texas at Austin, the University of Oklahoma, the University of Alabama etc.  It only has jurisdiction over private employees at colleges like Notre Dame, Stanford, Duke, Northwestern, Vanderbilt, etc.   

So I'm cool with all of this if it stops Texas high school OL from going to Stanford. Is that our endgame here?

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10 minutes ago, Mitch Cumsteen said:

So I'm cool with all of this if it stops Texas high school OL from going to Stanford. Is that our endgame here?

It would be the opposite...  As a Stanford employee, a player would be entitled to compensation from Stanford University.

 

Does Jeff Bezos like sports?

 

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