On September 29, the General Counsel of the National Labor Relations Board (NLRB) of Abruzzo informed NLRB officials nationwide that the scholarship recipients of private universities in the Division I of the NCAA FBS (Football Bowl Subdivision) ) are “employees” under the National Labor Relations Act (NLRA). Therefore, the NLRB should regard these athletes as protected “when they act in concert to talk about their terms of employment or to self-organize”. In his memo (GC 21-08), Abuzzo also argues that universities can commit unfair labor practices by “falsely classifying them as ‘student-athletes’, and leading them to believe that they have no rights. to the [NLRA’s] protection.”
GC Abuzzo’s recent memo builds heavily on, and largely reinstates, an earlier memorandum (GC 17-01), which the Trump NLRB rescinded. In GC 17-01, the former NLRB GC concluded that FBS Division I private college and university scholarship football players are employees under the NLRA “because they are rendering services to their colleges. and the NCAA, under their control, in exchange for compensation. “The discussion in GC 17-01 concerned a case in which the NLRB refused to assert jurisdiction over a representation request filed by Northwestern University scholarship football players, but it noted that it could come to an end. different result in a later case. See https://www.jdsupra.com/legalnews/nlrb-punts-on-first-down-declines-to-94120/. GC Abruzzo seems to have invited the filing of such a case.
What does the memo mean for colleges and universities?
An uneven playing field. Private colleges and universities fall under the jurisdiction of the NLRB, while public colleges and universities – that is to say, state colleges – generally not. Additionally, given the financial stakes state universities have in major varsity sports, public schools are unlikely to lobby to allow student athletes to form unions under state law to level the playing field with members of their private academic conferences. If private institutions have to negotiate with their athletes, and state institutions do not, it can put private institutions at a disadvantage.
Other implications of labor law. If the NLRB designates athletes at private colleges and universities as employees under the NLRA, then the question arises as to whether they are presumed to be employees for other purposes of federal and state law. For example, should they be covered by workers’ compensation? Will this have an impact on ongoing salary claims on behalf of some student-athletes?
Impact on NCAA rules. GC Abuzzo has also stated that it believes the NCAA and athletic conferences may be joint employers and, therefore, also subject to the jurisdiction of the NLRB. Does that mean student-athletes can negotiate NCAA rules and regulations, such as the requirement that they maintain full-time student status?
Tax implications. Currently, sports scholarships, room, board, books and expenses are not taxable income for the student athlete. If the student athlete is an employee, will these benefits constitute a W-2 salary to be reported like other employees of the institution? So far, compensation for athletic performance requiring tax reporting would likely violate NCAA rules regarding amateur status and disqualify the student from competition.
Title IX Implications. If student-athletes collectively negotiated salaries reflecting their team’s contribution to athletic department revenue, how would this affect a private university’s Title IX compliance obligations?
What impact will religious exemptions play?
In NLRB v. Catholic Bishops of Chicago, 440 US 490 (1979), the Supreme Court ruled that the NLRA does not authorize the NLRB to exercise jurisdiction over teachers in a Church-run school, whether the school is “fully religious” or simply “Religiously associated”. In Duquesne University of the Holy Spirit c. NLRB, 947 F.3d 824 (DC Cir. 2020), the United States Court of Appeals for the District of Columbia Circuit considered the religious exemption of the NLRA and held that when an institution (1) fails presented to the public as a religious institution; (2) is non-profit; and (3) is affiliated with a religion, “the [NLRB] must refuse to exercise its jurisdiction. “(Quoting University ofGreat Falls v. NLRB, 278 F.3d 1335 (DC Cir. 2002)). The Duquesne The Court ruled “that the NLRA does not empower the [NLRB] to exercise jurisdiction in matters involving schools with three peculiarities, none of which depends on the roles played by the petition-for faculty members. ” Thereby, Duquesne suggests that a religious exemption applies at the organizational level, and not to the specific task performed by an employee within that religious organization.
Duquesne says the religious exemption excludes another category of college participants, the religious institution, whose student athletes may not be subject to the NLRA. Notably, in its memo, GC Abruzzo reiterated that NLRB regions should refer religious exemption cases to the NLRB Division of Advice before making a decision.
As if that weren’t enough
In a footnote, GC Abruzzo also notes that it plans to “maintain the prosecutor’s position that student assistants, as well as medical interns and non-university students, are protected by the [NLRA]. “She also orders that all cases involving these matters be referred to the Counseling Division.
Where do we go from here?
GC Abuzzo is asking regional offices to bring forward for review cases where athletes from FBS institutions in NCAA Division I claim employee status under the NLRA. It will undoubtedly happen. It also seems inevitable that such an NLRB decision will be appealed to federal courts of appeal, possibly most likely in the District of Columbia.
Institutions need to be sensitive to how they respond to concerted student-athlete actions to reduce the likelihood of possible retaliation charges. Likewise, institutions should consider developing talking points explaining why they call their players “student athletes” in order to reduce the likelihood of misclassification charges.