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National Labor Relations Board Leader Says College Athletes Are Employees

On Sept. 29, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum stating that “Players at Academic Institutions are employees” under the National Labor Relations Act (NLRA).

“My intent in issuing this memo is 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,” General Counsel Abruzzo said.

“Players at Academic Institutions perform services … in return for compensation and subject to their control. Thus, the broad language of [the NLRA] … fully support[s] the conclusion that certain Players … have the right to act collectively to improve their terms and conditions of employment.”

In her memorandum, she cites Supreme Court Justice Brett Kavanaugh’s concurring opinion in NCAA v. Alston, saying, “He strongly suggested that the NCAA’s remaining compensation rules also violate antitrust laws and questioned ‘whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share’ of the billions of dollars in revenue that they generate. Moreover, he suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by ‘engag[ing] in collective bargaining.’”

In his concurring opinion, Kavanaugh wrote:

“The NCAA has long restricted the compensation and benefits that student athletes may receive. And with surprising success, the NCAA has long shielded its compensation rules from ordinary antitrust scrutiny … But this case involves only a narrow subset of the NCAA’s compensation rules—namely, the rules restricting the education-related benefits that student athletes may receive, such as post-eligibility scholarships at graduate or vocational schools. The rest of the NCAA’s compensation rules are not at issue here and therefore remain on the books. Those remaining compensation rules generally restrict student athletes from receiving compensation or benefits from their colleges for playing sports. And those rules have also historically restricted student athletes from receiving money from endorsement deals and the like. I add this concurring opinion to underscore that the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.”

Kavanaugh presented three main points worth scrutiny.

“First, the Court does not address the legality of the NCAA’s remaining compensation rules. … Second, although the Court does not weigh in on the ultimate legality of the NCAA’s remaining compensation rules, the Court’s decision establishes how any such rules should be analyzed going forward. … Third, there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary rule of reason scrutiny. Under the rule of reason, the NCAA must supply a legally valid procompetitive justification for its remaining compensation rules. As I see it, however, the NCAA may lack such a justification.”

While the decision to recognize that “student-athletes” are actually “employees” has been long expected, critics have suggested that the reclassification could result in a net-negative for these athletes as a whole.

The idea of being classified as an “employee” rather than a “student-athlete” raises the question of whether these athletes should be required to attend class. If so, critics contend, then every athlete has the prerequisite of a full scholarship because it is a duty of their employment; and if not, at what point does the team become detached from the school?

The problem is particularly an issue for schools that are not perennially performing at the top of a sport. Schools who would not be able to afford to maintain all of the athletes for their current sports could accumulate a net-cost for an already limited budget.

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