Federal Labor Law Attorney Says College Athletes Are Employees and Can Organize

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College athletes who make millions for their schools are employees, the National Labor Relations Board’s top lawyer said in a policy released Wednesday that would allow players in private universities to unionize and agree about their working conditions negotiate.

NLRB General Counsel Jennifer Abruzzo also threatened action against schools, conferences and the NCAA if they continued to use the term “student-athlete”.

“The freedom to get involved in large and lucrative commercial enterprises makes players in academic institutions much more similar to professional athletes who are hired by a team to practice a sport,” wrote the Abruzzo.

In a statement, the NCAA denied characterizing its athletes as employees, saying that its member schools and conferences “continue to make great strides in modernizing rules for the benefit of college athletes.”

“College athletes are students who compete against other students, not employees who compete against other staff,” said the country’s largest university sports association, which oversees approximately 450,000 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 comprehensive educational experience that is unique in the United States and is critical to the holistic development of all participants. “

The Abruzzo memo does not immediately change the dynamic between schools and their athletes who, in exchange for sports, can receive scholarships and limited costs to participate. Instead, it is legal advice to the NLRB just in case.

This could be triggered by a team’s efforts to unionize, an allegation of unfair work practices, or even a school continuing to refer to a player as a “student-athlete,” Abruzzo said in an interview with The Associated Press .

“It just perpetuates this notion that players in academic institutions are not workers who are protected by law,” she said. “The right of workers to band together to improve their working conditions is terrifying.”

Gabe Feldman, director of the Tulane Sports Law Program, said the memo was “another threat” to the NCAA and its business model that relies on unpaid athletes to generate billions in revenue that is distributed to its 1,200 member schools.

“All the signs point to an increasingly vulnerable and fragile system of college athletics,” he said.

Although football is college sport’s biggest money-maker at the five largest conferences, the memo would extend protection to all athletes who meet the legal definition of an employee: someone who provides services to an institution and is under its control.

The NLRB has authority only over private schools; Athletes in public universities would have to turn to legislative bodies or Congress for protection in the workplace. But the NCAA and the conferences could be viewed as contributors, Abruzzo told the AP.

“If they trade in the private sector, they are subject to this law,” she said. “We believe that not only the college but also the conference itself controls employment conditions directly and immediately.”

The NLRB’s new stance – which restores an old mind overturned during President Donald Trump’s tenure – is the latest test of the NCAA and U.S. college sports infrastructure.

This spring, a Supreme Court unanimously said the NCAA cannot curtail educational benefits while foreshadowing the end of the NCAA’s business model. A few weeks later, under pressure from several states, the organization paved the way for athletes to make money based on their celebrity status.

Since March, the NCAA has also been criticized for the inequality between resources, branding, and support for its men’s and women’s basketball tournaments. The organization plans to revise its statutes, some of which have been in force for a century.

Abruzzo also wrote that after the assassination of George Floyd, players across the country took collective action – measures that “directly affect terms of employment and are protected concerted activities”. Players have also banded together during the recent pandemic – both by advocating for the games to move forward and for rules to protect themselves once they have.

“Players at academic institutions have gained more power as they better understand their worth by generating billions of dollars in revenue for their colleges and universities, sports conferences, and the NCAA,” she wrote.

“And this increased activism and the demand for fair treatment received more support from some coaches, fans and school administrators. Actors at academic institutions who take concerted action to improve their working conditions have the right to be protected from retaliation. “

The NLRB nine-page memo revisited a case of Northwestern footballers who were prevented from forming a union when the Board of Directors said in 2015 that partisanship “would not promote stability in industrial relations”.

Much has changed since then, including the awakening of collective social justice and the Alston Supreme Court ruling in which Abruzzo said they “made a clear statement that this was a for-profit business and not amateurism”.

If similar cases as in the north-west come before the NLRB, a different decision could be made.

“I don’t think the board can or should punt,” she told the AP. “I think we have more information that they are statutory employees.”

The memo of Abruzzo appointed by President Joe Biden overturned a 2017 memo from its predecessor. That memo had in turn overturned a memo of President Barack Obama’s appointment when Abruzzo was still Deputy General Counsel.

Southeastern Conference commissioner Greg Sankey noted the repeated overturns and conflicting court rulings made it difficult for the institutions to plan.

“Given the resulting uncertainty and the many other challenges faced by college athletics, we hope Congress will step in and establish clear and consistent legal standards in line with recent court decisions,” he said.

– The Associated Press


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