College Athletes Should Be Able to Unionize, Labor Relations Board Says

On Wednesday, the National Labor Relations Board (NLRB) said student-athletes should legally be classified as employees and have the ability to unionize.

Jennifer Abruzzo, the general counsel for the NLRB, announced the development through a memorandum sent to all of the NLRB field offices and through a subsequent press release posted on the board's website.

Abruzzo's stance on the issue was supported by a recent U.S. Supreme Court decision that acknowledged college sports as "a profit-making enterprise," according to the NLRB's release. Efforts student-athletes have made to advocate for themselves amid the ongoing coronavirus pandemic and through pushes for an end to systemic racism have also served to support Abruzzo's position, according to the NLRB.

"Players at Academic Institutions perform services for institutions in return for compensation and subject to their control," Abruzzo said. "Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law, fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment."

National Labor Relations Board student athletes employees
The National Labor Relations Board on Wednesday issued a memorandum stating student-athletes are employees under the National Labor Relations Act. Above, players warm up on the court prior to a game between the North Carolina Tar Heels and the Gonzaga Bulldogs at McCarthey Athletic Center on December 18, 2019 in Spokane, Washington. William Mancebo/Getty Images

Abruzzo added the reason she was making a public announcement was to "educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA," regarding what her stance will be for related legal issues moving forward.

In the event that student-athletes are not properly classified as employees or are discouraged from seeking out the protections outlined in the National Labor Relations Act, the result will have "a chilling effect on Section 7 activity," Abruzzo wrote in the memo, referring to the portion of the act that outlines employee rights. That section says in part that employees have the right to "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

Today, in a new memo, General Counsel Jennifer Abruzzo explains her position that certain Players at Academic Institutions are employees under the National Labor Relations Act. Read more:

— NLRB General Counsel (@NLRBGC) September 29, 2021

Abruzzo said in the memo that in "appropriate cases" where employee rights are violated, "I will pursue an independent violation of Section 8(a)(1) of the Act," referring to the portion of the act outlining what constitutes unfair labor practices.

Later Wednesday, the NCAA sent Newsweek a statement from Stacey Osburn, the association's director of communications, in response to the NLRB's decision.

"With college sports embedded within the higher education experience, we firmly believe that college athletes are students who compete against other students, not employees who compete against other employees," Osburn said.

Her statement continued: "NCAA member schools and conferences continue to make great strides in modernizing rules to benefit college 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 total educational experience that is unique to the United States and vital to the holistic development of all who participate."

The Supreme Court issued a unanimous decision on NCAA v. Alston in June that addressed compensation for athletes in college sports by allowing an expansion of the compensation they can receive. The NCAA oversees more than 500,000 collegiate athletes and awards about $3.5 billion annually in scholarships, according to the association's website.

The rights of collegiate athletes have been widely debated in recent years as athletes and their advocates have noted the nature of college sports, once considered amateur, has become increasingly competitive and profitable for the organizations involved.

By early July, 25 states had implemented laws enabling college athletes to receive compensation for things like the use of their names, images or likenesses, according to the National Conference of State Legislatures (NCSL). California was the first state to pass a bill related to college athlete compensation, known as the Fair Pay to Play Act, in 2019 and was followed by several other states that began taking steps to enact legislation of their own, according to the NCSL's database.

Updated 09/29/2021, 6:03 p.m. ET: This story has been updated to include comments from the NCAA.

Updated 09/29/2021, 1:21 p.m. ET: This story has been updated with additional information and background.