Advocates for college athletes’ rights have been working for years to loosen the NCAA’s grip on players’ working conditions, and lately they have seen progress accelerate — with Supreme Court Justice Brett M. Kavanaugh’s scathing opinion this summer and with the NCAA finally letting athletes profit from their personal brands.
On Wednesday, another domino fell when the Biden administration signaled its support for college athletes forming unions and negotiating for expanded rights.
The National Labor Relations Board issued a memo Wednesday saying that it considers college football players and some other athletes in revenue-generating sports to be employees of their schools, opening the door for players at private universities to negotiate on issues of player health, compensation and other working conditions, according to labor rights experts.
In the nine-page memo, NLRB General Counsel Jennifer Abruzzo said players are employees and have the right to unionize. She threatened schools, conferences and the NCAA over their use of the term “student-athletes” and said player activism is a “protected concerted activity.”
“[Players are] employees, who have the right to act collectively to improve their terms and conditions of employment,” Abruzzo wrote. The memo, she said, was to “help educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, about the legal position that I will be taking regarding employee status and misclassification in appropriate cases.”
The NLRB is a federal agency that enforces U.S. labor law in relation to collective bargaining and unfair labor practices. In 2015, its five-member board prevented Northwestern football players from becoming the first college team to form a union when it opted not to decide whether scholarship players are employees, because doing so “would not promote stability in labor relations across the league.” The decision was seen as a victory for Northwestern and the NCAA, but the board said its decision did not preclude future reconsideration.
Six years later, Wednesday’s memo revisited the issue at a moment when players and their advocates have won concessions from the NCAA on players’ rights and compensation and as the NCAA faces a litany of legal challenges.
The memo cites that recent history, noting college athletes’ activism around issues of racial justice following the murder of George Floyd and around player health and safety during the pandemic. That activism “directly concerns terms and conditions of employment,” Abruzzo wrote, “and is protected.”
Abruzzo also threatened schools, conferences and the NCAA if they label players “student-athletes,” arguing that the term mischaracterizes their employment status and may discourage them from pursuing their full rights.
The NCAA responded in a statement Wednesday night, reiterating its position while avoiding the term “student-athlete.”
“With college sports embedded within the higher education experience, we firmly believe that college athletes are students who compete against other students, not employees who compete against other employees,” it said. “NCAA member schools and conferences continue to make great strides in modernizing rules to benefit college athletes. Like other students on a college or university campus who receive scholarships, those who participate in college sports are students. Both academics and athletics are part of a total educational experience that is unique to the United States and vital to the holistic development of all who participate.”
The SEC, one of college sports’ most powerful conferences, promptly issued a statement invoking the term “student-athletes.”
John Adam, a Michigan labor lawyer who represented the Northwestern players, said Wednesday’s memo serves as a guidance that may invite more legal challenges.
“It’s step-by-step, brick-by-brick. There’s setbacks but also there’s progress, and the zeitgeist, the spirit of the time is moving toward giving athletes greater rights,” he said. We don’t know “exactly how far it will go and what it will involve or whether Congress or others will intervene to somehow change it, but there’s no question that rights are expanding and the right to get compensation in different ways is expanding.”
Former Northwestern quarterback Kain Colter sought to organize a union of players to obtain more extensive rights and conditions, including medical coverage for former players left with lasting sports-related injuries, before the NLRB thwarted those efforts in 2015.
But that setback has not deterred litigation pushing for such benefits, which could mount after Wednesday’s guidance, potentially pushing the NCAA to adopt a different approach, according to William B. Gould IV, a former chairman of the NLRB and a professor emeritus at Stanford Law School.
Gould said the memo does not change the fact that the NLRB holds no direct jurisdiction over public universities. But he said Wednesday’s memo opens the door for collective bargaining between players and the NCAA, which could eventually impact athletes at public schools.
Unions representing private-school athletes “may be bargaining over policies that the NCAA or the conferences have, which affect other universities as well. And I’m sure they will not want to have two sets of policies,” he said.
Gould envisions a future in which athletes may be better equipped to negotiate their working conditions. But he cautioned that the NCAA and its conferences could use those negotiations to try to restore greater leverage over players.
“Through collective bargaining, if they can get a good deal from players, they will choke off antitrust liability. That’s one avenue they might take,” he said. “If you have a collective bargaining agreement, there will be no more Alston-type lawsuits and that would be wonderful from the university perspective. Get rid of all these lawsuits because they’re coming down the pike like you can’t believe.”
They could also shun collective bargaining, choosing to absorb the impending legal challenges and gambling that a majority-conservative Supreme Court ultimately rules in their favor the next time around.
To that point, Gould said collective bargaining is not a panacea for schools, conferences or the NCAA, because it may still leave some exposed to additional litigation that touches on the question of whether college athletes should be paid.
“A problem with that avenue is that they will inevitably expose themselves where collective bargaining doesn’t exist: to wage and hour litigation. In all these suits all over the country, players are saying … for all the time that you’re controlling me, I want at least the minimum wage provided by federal and state law,” he said, adding how that issue plays out is “the great imponderable.”