October 14, 2021


As this blog reported not long ago, there’s a new sheriff—which is to say, general counsel—at the National Labor Relations Board (NLRB), and as expected, she is reviving a variety of policy issues left over from the Obama administration (if not before). Although not necessarily of substantial interest to the business community, a recent memorandum from her office reinvigorates a controversial issue put to the wayside under the Trump-era Board.

The memo in question addresses the issue of whether student-athletes—er, “Players at Academic Institutions”—are covered as employees under the National Labor Relations Act (NLRA), which has become one of the more contentious, if obscure, debates in the never-ending policy ping-pong match at the NLRB.

Indeed, over the last decade or two, the Board has increasingly determined that various categories of students (i.e., undergraduate and graduate), such as teaching assistants, are employees of their universities under the NLRA. This position, as counterintuitive as it may seem to rational observers, has allowed labor unions to target these students for organizing in their desperate effort to reverse organized labor’s sixty-five year membership decline.

In 2014, an NLRB Regional Director considered a representation petition at Northwestern University that made headlines because he concluded that the university’s scholarship football players were employees covered by the NLRA. The Board itself declined to assert jurisdiction, though, saying that doing so “in this case would not serve to promote stability in labor relations.” However, the Board limited the extent of its determination and further said that “whether we might assert jurisdiction in another case involving grant-in-aid scholarship foot-ball players (or other types of scholarship athletes) is a question we need not and do not address at this time.”

In January 2017, former General Counsel Richard Griffin issued a report in which he analyzed the Board’s position on a number of student-employee cases and went on to say that “it is clear from the evidentiary record established in Northwestern University that scholarship football players at Northwestern and other Division I FBS private colleges and universities are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation.” Griffin’s successor withdrew the report later the same year.

Following the dubious removal of that successor, Peter Robb, the Senate confirmed Jennifer Abruzzo to replace him, and she has quickly moved to tee up cases that will reverse Trump-era policies. In addition, she reinstated Griffin’s 2017 report on student-employees with the aforementioned memorandum, GC 21-08.

The memo asserts Abruzzo’s “prosecutorial position that certain Players at Academic Institutions are employees under the Act” and “that misclassifying such employees as mere ‘student-athletes’, and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the [NLRA].” It also cites a recent Supreme Court decision dealing with NCAA rules about compensation paid to college athletes and suggests that the court may agree the NLRA covers scholarship athletes.

It will take a considerable amount of time before such a booth review could even happen, but should the general counsel’s play be allowed to stand, the world of college sports will be radically changed, and not for the better.