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NLRB: Private college athletes are employees and can unionize

On Behalf of | Oct 4, 2021 | Education Law

The term “student athlete” was created essentially to hide the fact that college-level athletes are actually employees, according to the general counsel of the National Labor Relations Board (NLRB). In fact, she threatened to take action against colleges and universities who continue to use the term.

This was just a small part of a policy memorandum the NLRB recently issued. The larger part was a ruling that college athletes, who often earn millions of dollars for their schools, are employees of those schools. At private colleges and universities, at least, that means the athletes can unionize and/or negotiate better working conditions.

“The freedom to engage in far-reaching and lucrative business enterprises makes players at academic institutions much more similar to professional athletes who are employed by a team to play a sport,” the general counsel wrote.

The NCAA doesn’t agree, and it plans to challenge the policy memo.

After stating that the organization and its member schools and conferences “continue to make great strides in modernizing rules to benefit college athletes,” the NCAA denied that college athletes are employees at all.

“Like other students on a college or university campus who receive scholarships, those who participate in college sports are students,” the organization said in a statement. “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 NCAA may be fighting a losing battle to preserve the amateur student athlete model. Earlier this year, the U.S. Supreme Court ruled unanimously that the NCAA and universities do not have the right to limit education-related benefits for athletes. Now, even athletes who are students can earn money from their skill and celebrity.

What changes does the policy memo bring?

The NLRB’s policy memo is meant as legal advice in case a dispute arises over the question of whether students on athletic scholarships are entitled to unionize or negotiate better working conditions. So far, nothing has occurred to trigger the policy memo.

What could trigger the memo might be a simple complaint that a college or university is using unfair labor practices. Or, someone might attempt to unionize athletes to force more favorable conditions.

The memo doesn’t apply just to college football and basketball players, who tend to bring in the most money for schools. It applies to any student who meets the NLRB’s definition of employee: someone who performs services for an institution and who is subject to its control. However, the NLRB only has authority over private institutions, not state colleges or universities.

Leigh Law Group represents students in a wide variety of educational and employment matters.