NLRB Announces It Will Expand the Definition of “Employee” to Include Student Athletes
The General Counsel for the National Labor Relations Board (NLRB), Ms. Jennifer Abruzzo, has issued a memorandum with far-reaching implications for the rights of student college athletes, as well as the obligations of universities and employers. General Counsel (“GC”) Memo 21-08, issued on September 29, 2021, entitled, “Statutory Rights of Players at Academic Institutions (Student Athletes)” now establishes the position that certain college athletes are “employees” under §2(3) of the National Labor Relations Act (“NLRA”).
This finding is significant for several reasons. First, GC Memo 21-08 prohibits the use of the term “student-athlete,” concluding that the term is inherently coercive, because it misleads college players to believe that they lack statutory protections, making the use of the term a standalone violation of the NLRA. Instead, GC Memo suggests calling college athletes “players at academic institutions.”
Second, GC Memo 21-08 extends Section 7 rights and protections to college athletes and opens the door for athletes to start or resume organizing efforts, labor protests, walkouts, strikes, and other protected concerted activity. It also extends NLRA protections to activities not directly related to the workplace, such as demonstrations calling for adequate safety protocols and even actions related to socio-political issues, like racial justice issues.
Finally, GC Memo 21-08 declares that public institutions – which are generally outside of NLRB jurisdiction – may still be subject to prosecution by the NLRB along with the National Collegiate Athletic Association (“NCAA”) and conferences, like the PAC-12, which it calls “independent, private entit[ies], created by the member schools.”
Other important changes include the reinstatement of portions of GC Memo 17-01, which afforded certain students all protections under the NLRA. More specifically, GC 17-01 concluded, and GC 21-08 reinstated, the theory that the type of scholarship football players at issue in Northwestern University satisfy both the broad §2(3) definition of employee as well as the common-law agency test, which defines an employee as a person “who perform[s] services for another and [is] subject to the other’s control or right to control.”
As described above, Ms. Abruzzo views all references to college players as “student-athletes” as a purposeful misclassification under the NLRA and an independent violation of §8(a)(1), because the term purportedly misleads college players to believe that they lack statutory protections. GC Memo 21-08 declares that the General Counsel’s Office will pursue an independent violation of §8(a)(1) where any institution misclassifies players at academic institutions as “student-athletes”, holding institutions strictly liable for any violations.
The employment lawyers at Thakur Law Firm, APC will continue to monitor the changing landscape of employment law rights for college students participating in college athletics. If you are a college student, a university or an employer and you have questions about how the implications of GC Memo 21-08 might affect you, contact Thakur Law Firm today to be properly informed of your rights and obligations in light of these recent updates.