In Keeping With Aggressive Stance, NLRB General Counsel Opines College Players Can Organize

A couple weeks back, we detailed how the General Counsel for the National Labor Relations Board (NLRB) issued a memorandum to field representatives informing them to seek higher penalties for employers found liable for unfair labor practices against employees.  Well, the General Counsel was not done with the issuing of opinions and directives to the different regional directors in the NLRB.

Yesterday, the General Counsel issued an opinion to all regional directors and officers in charge of the NLRB, discussing the rights of student-athletes at private universities under the National Labor Relations Act (“NLRA”).  Back in 2017, a memo was issued by the General Counsel addressing the Board’s decision in Northwestern University, where the Board refused to exercise jurisdiction over the athletes whose union filed a representation petition.  The Trump administration’s General Counsel rescinded the guidance from the previous General Counsel, and all was quiet until now.  With the subsequent change in administration at the beginning of this year, the previous guidance issued by the General Counsel is meant to provide guidance to employers, unions and employees “regarding how the Office of the General Counsel intended to apply those cases in the unfair labor practice arena.”

Opinion Memo

In her opinion memo, the General Counsel opines that “the conclusion that such Players at Academic institutions are employees is supported by the statutory language and policies of the NLRA…”  The General Counsel noted that the definition of “employee” under the NLRA is broad, and only subject to a few exceptions.

The 2017 guidance from the previous General Counsel advised that scholarship athletes performed a service on behalf of their universities, received significant compensation for doing so, were controlled by the NCAA in regard to terms and conditions of employment, and were controlled in their manner and means of work on the field by their chosen academic institutions.

In coming to the determination that the athletes were employees, the General Counsel states she “will pursue an independent violation of Section 8(a)(1) of the act where an employer misclassifies Players at Academic Institutions as student-athletes,” as that term can have a chilling effect on organizing activities.

In support of her opinion, the General Counsel cited Justice Kavanaugh’s concurring opinion in NCAA v. Alston, where he actually suggested students could resolve difficult questions regarding compensation by “engaging in collective bargaining.”  The General Counsel concluded that scholarship athletes at academic institutions were employees under the act, and she would be taking that legal position in future investigations and litigation.

So there you have it – if your institution provides compensation to athletes in the form of “tuition, fees, room, board, books or stipends” you may find yourself on the receiving end of an organizing drive by a local collective bargaining representative.  Nationwide, collegiate athletics are a billion dollar a year industry, and the people providing the product that generates all that money will be looking to get in on the action.  If you, or your organization, are in need of assistance in dealing with athlete organizing or responding to charges, contact Wiley Reber Law, for legal advice that works.