The law evolves on ‘student athletes’

In 2014, several Northwestern football players shocked employment lawyers across the country by announcing they were seeking to unionize.

The College Athletes Player’s Association, with assistance from the Steelworkers union, petitioned the National Labor Relations Board in Chicago to represent the college football players.

A hearing was held and the NLRB in 2015 declined to exercise jurisdiction over the university’s scholarship football players and declined to decide whether student athletes were statutory employees.

The NLRB stated that it did not have jurisdiction over state run colleges and universities, and noted that every school in the Big Ten, except Northwestern, was a state-run institution.

The NLRB held that asserting jurisdiction over a single team would not promote stability in labor relations across the league. The NLRB expressly stated that its decision did not preclude reconsideration of the issue in the future.

The reason for the continued uproar is that many believe “student athletes” are not “employees” and therefore eligible for protection under employment laws.

However, the law on this topic is evolving, especially since the Supreme Court’s unanimous June 2021 ruling in NCAA v Alston preventing the NCAA from adopting rules that cap the amount schools can pay student-athletes for education-related benefits, and the subsequent NCAA policies adopted shortly thereafter in June 2021 allowing college student athletes the opportunity to benefit from their name, image and likeness.

On Sept. 29, NLRB General Counsel Jennifer Abruzzo issued GC Memorandum 21-08 entitled “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act.” The memorandum makes clear that the current Biden General Counsel considers “student athletes” to be employees under the NLRA.

According to Abruzzo, the recent Supreme Court decision and relaxed NCAA rules supports the view that student athletes qualify as employees under the law.

She also declined to refer to these athletes as “student athletes,” saying the term was coined for the purpose of denying college athletes workplace protections, and instead refers to them as “players at academic institutions.”

The General Counsel further noted that the term “employee” is broadly defined, and said the following evidence supporting employee status:

Although the NCAA forbids the payment of salaries to players, the memorandum focuses on “tuition, fees, room, board, books and stipends “ paid by universities.

While coverage under the NLRA would permit student athletes to form and join unions, note that most state universities are individually exempt from the NLRA.

The General Counsel accordingly only would be able to pursue charges against private universities and athletic conferences to which they belong.

In Iowa, for example, student athletes at the University of Iowa and Iowa State University would not be covered under the NLRA. However, student athletes at Drake University likely would be.

However, the General Counsel’s memorandum also suggested either the NCAA or a college sports athletic conference may constitute a “joint employer” of certain college athletes, thus creating a possible grounds for NLRB jurisdiction over an entire conference.

The General Counsel said she would consider pursuing charges against an athletic conference or association even if some members schools are state institutions.

The General Counsel’s position on student athletes also is currently at odds with other decisions in the employment context, in which courts have concluded that student athletes are not employees of the NCAA or their athletic conference.

In one 2016 case from the Seventh Circuit Court of Appeals, for example, the court held that two former student athletes at the University of Pennsylvania track and field team were not entitled to a minimum wage under the Fair Labor Standards Act.

In 2019, the Ninth Circuit Court of Appeals similarly rejected wage and hour claims of a football player at the University of Southern California. Another lawsuit is pending by a former Villanova football player alleging that student athletes in the NCAA are entitled to minimum wages under the FLSA.

The legal landscape involving student athletes is changing rapidly, fueled by players gaining more power as they better understand, according to General Counsel Abruzzo, “their value in generating billions of dollars in revenue for their colleges and universities, athletic conferences and the NCAA.”

Look for increased litigation and organizing activity involving athletes in colleges, both private and public.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.