NAICU Washington Update

NLRB: Student Athletes Are Protected by Labor Law

October 01, 2021

The National Labor Relations Board (NLRB) has issued a memo concluding that many student athletes at private nonprofit colleges and universities are entitled to protection under federal labor law.  The Board’s conclusion reinstates an Obama-era policy that had been reversed by the Trump Administration.

Specifically, the memo asserts that scholarship football players at issue in a case involving Northwestern University and other similarly situated student athletes are employees for purposes of the National Labor Relations Action (NLRA). Such protection will allow these student athletes to unionize and engage in collective bargaining to negotiate the terms and conditions of their employment. In addition, the memo states that misclassifying such athletes as students rather than employees could give rise to a violation of the statutory prohibition against misclassifying employees. 

According to the NLRB, the determination that student athletes at private institutions are employees is supported by the broad statutory definition of “employee” in the NLRA and the common law understanding of employees as those who perform services for another and is subject to the other’s control. In support of its position, the NLRB also cites changes in National Collegiate Athletic Association (NCAA) rules, cultural understanding, and the law regarding student athletes, including the recent Supreme Court decision in NCAA v. Alston and new policies regarding athletes’ use of their name, image, and likeness. 

It remains to be seen how the agency’s position will be applied to specific situations and whether the policy will withstand potential legal challenges. 

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