The General Counsel for the National Labor Relations Board (NLRB or Board), who has authority for setting prosecutorial policy for the NLRB, issued a General Counsel Memorandum (GC Memo) today, reversing the prior Board General Counsel’s position and asserting the employee status of certain student athletes at private educational institutions. Board General Counsel Jennifer Abruzzo conveyed her enforcement position in a memorandum to the Board’s Regional Directors. Because non-unionized employees have rights under the federal labor law, the immediate impact will be that the NLRB’s enforcement arm will be processing complaints related to allegations of adverse treatment of certain student athletes for all variety of internal complaints against private institutions.

Those familiar with this issue will recall the recent history involving football student athletes at Northwestern University. In August 2015, the Board issued its decision in Northwestern University, 362 NLRB No. 167, declining to exercise its jurisdiction over a representation petition filed by a union seeking to represent Northwestern University’s football players who receive grant-in-aid scholarships. In so holding, the Board expressly declined to resolve the issue of whether college scholarship football players are employees under the National Labor Relations Act (Act). The Board reasoned that, even if the football players are employees for the purposes of collective bargaining, “such bargaining has never involved a bargaining unit consisting of a single team’s players, where the players for competing teams were unrepresented or entirely outside the Board’s jurisdiction.” The Board went on to note that “we are declining jurisdiction only in this case involving the football players at Northwestern University; we therefore do not address what the Board’s approach might be to a petition for all FBS scholarship football players (at least those at private colleges and universities).”

In a prior General Counsel memorandum issued in January 2017, then-General Counsel Richard Griffin noted that the NRLB had declined to exercise jurisdiction over a representation petition filed by a union seeking to represent Northwestern’s scholarship football player and expressly declined to resolve whether the student athletes were employees. That memorandum proceeded to find that Northwestern and other FBS football players were statutory employees under the Act. General Counsel Peter Robb rescinded that memorandum in 2018. This GC Memo reinstates the 2017 General Counsel memorandum and expands upon it.

The GC Memo makes clear the following positions from an enforcement perspective (which means that these kinds of cases will likely be taken to a hearing before the Board with ultimate appeal rights to the courts):

• Certain Players at Academic Institutions, which is the General Counsel’s preferred term for student athletes, are employees under the Act and are entitled to the rights and protections of employees under the Act, including individual claims as well as union organizing. 
• As to which student athletes the General Counsel would consider to be employees, the GC Memo indicates that the scholarship football players at Northwestern described in the 2017 GC Memorandum and “other similarly situated Players at Academic Institutions” satisfy the definition of employee. The GC Memo discusses the evidence from the Northwestern University case (scholarship dollar value, the requirement to follow compliance rules and team rules among them) and thereby provides some insight as to who a similarly situated student athlete might be.
• The protections for student athletes with employee status include the right to speak out about their terms and conditions of employment and to self-organize, regardless of whether the Board would process or ultimately certify a bargaining unit under the Northwestern University decision, which for now remains Board precedent. 
• The GC Memo states that the Board is not precluded by its decision in Northwestern University – the decision to not exercise its jurisdiction and to not process a petition for union representation – from processing such a petition now. Processing such a petition could in theory result in a certification of a bargaining agent and a theoretical duty to bargain regarding the terms and conditions of “employment” for student athletes, at least those deemed to be employees under the Act.
• For those “certain Players at Academic Institutions” that are deemed employees under the Act, “misclassifying” them as “student athletes” and leading them to believe that they are not entitled to the Act’s protections has a chilling effect on protected activity under the Act and is itself a violation of the Act. That is, the GC Memo takes the position that an institution’s characterization of the individuals as student athletes, even if made in good faith, is a violation of the Act if the Board at some point decides that the individuals are within the group of Players at Academic Institutions that are deemed employees. This suggests a strict liability type standard for use of the term student athlete for those ultimately not deemed to be student athletes, but rather employees.
• The GC Memo also takes the position that the NCAA and the athletic conferences could both be liable for violations of the Act under joint employer theory. The GC Memo notes that this would hold true even for conferences where the majority of member institutions are public institutions.

The GC Memo concludes:

In sum, it is my position that the scholarship football players at issue in Northwestern University, and similarly situated Players at Academic Institutions, are employees under the Act. I fully expect that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences and the NCAA, that I will be taking that legal position in future investigations and litigation under the Act. In addition, it notifies them that I will also consider pursuing a misclassification violation.

This is a strong statement of the new General Counsel’s enforcement position. How this plays out, before the NLRB and the courts in an adjudication context, remains to be seen.

Specifically, this is an enforcement position, not an NLRB decision. Thus, the GC Memo indicates where the General Counsel would like the Board to go, but the Board has not gone there yet. 

In addition, this GC Memo lays out a roadmap for any student athletes who want to challenge their treatment as retaliatory to allege a violation of their right to engage in protected, concerted activity. Examples of protected concerted activity could be broad enough to include athletes asking for improved safety protocols, pursuing racial justice or even advocating for coaching changes. To be clear, statutory employees must not be retaliated against for engaging in protected, concerted activity, but are not immune from consequences for conduct and performance related concerns unrelated to the activity. But walking that line can be difficult to navigate at times. Institutions should review their policies and consider training for their athletic departments on what might constitute protected activity. 

Also, the mere use of the term student athlete has been specifically called out by the GC Memo. Institutions will want to review their policies and communications and determine their approach and whether changes are required. 

Finally, we may see test cases involving not only protected concerted activity, but also a request for the Board to revisit Northwestern University and process petitions for union recognition. Institutions will want to give some consideration to their preferred approach if such a matter is filed and processed for their athletes.

One thing is very clear – each institution will have to assess, immediately, its position on these issues. Waiting to see how this plays out in NLRB proceedings is not advisable, as action or inaction today could serve as the backdrop for tomorrow’s NLRB proceeding.

Those with questions about the GC Memo, or the evolving college athletics landscape should reach out to Pete Jones, co-chair of the firm’s higher education practice, at jonesp@bsk.com, Rick Evrard, member in the firm’s collegiate sports practice, evrardr@bsk.com or to any member of Bond’s Higher Education or Collegiate Sports practice groups.