It has been a transformative three months in college sports. In the case NCAA v. Alston in June, a 9–0 Supreme Court swatted away an NCAA argument that amateurism was so vital to the character of the games that the association deserved special treatment under antitrust law and put caps on “education-related” benefits to players. In July, after state legislators around the country forced the issue, athletes started earning money for the use of their names, images, and likenesses, a right that the NCAA had denied them for its entire history. Later that month, Texas and Oklahoma left the Big 12 for the SEC and kicked off a new realignment wave.
Those are all big stories, but something happened Wednesday that could pack a heavier punch than any of them, albeit on a delayed schedule. The general counsel of the National Labor Relations Board, Jennifer Abruzzo, released a piece of paper that says college athletes in certain situations are employees of their schools, entitled to all the federal rights and protections employees get anywhere. The memo was to some extent a reinstatement of a similar document that a former, Obama-appointed NLRB general counsel unveiled in February 2017 and which his Trump-appointed successor rescinded later that year. Wednesday’s version goes further than its predecessor, in that in addition to advocating for athletes’ employee status, it alleges that schools that misclassify employees as “student-athletes” and mislead them about their rights are violating federal law.
“I want to educate the players at academic institutions, as well as the institutions themselves, and conferences, and the public writ large that this is an important issue—that I believe under the common law as well as board law that in certain circumstances, they are statutory employees,” Abruzzo says. Specifically, she describes the circumstances of Northwestern football players who in 2014 and ’15 attempted to form a union, got a green light from an NLRB regional office, and only lost their union bid when the five-member national board denied them employee status on the basis that it did not promote “stability in labor relations.” The NLRB only has jurisdiction over the private sector, which includes private schools like Northwestern but not the public schools that field the vast majority of major college football teams. Abruzzo’s memo says “scholarship football players” at private Football Bowl Subdivision schools should be considered employees under the law, because they perform lucrative services for their schools in exchange for compensation, and because those schools heavily dictate the players’ working conditions and terms of employment. Though public schools are outside the NLRB’s purview, the memo says “similarly situated players at academic institutions” are also employees, a view that might inform other bodies’ actions with respect to public schools. She acknowledges the NLRB cannot enforce actions on those campuses.
The NLRB memo is important because it cuts to the heart of college sports amateurism in a way that this year’s other major stories do not. Name, image, and likeness payments are a big deal and mark a new era, but they don’t deal with the core injustice of schools making tens of millions of dollars per year in TV, ticket, and licensing money and not sharing any of that liquid cash with their athletes. The Alston case moves in that direction by threatening the NCAA’s ability to cap compensation—and thereby letting schools continue to avoid the need to compete in a free market for talent—but it doesn’t require a university to give players anything at all.
On the other hand, employee status for even a fraction of major college football players would turn the whole model on its head. It would confer union rights and make football programs subject to the same wage, overtime, and safety constraints as any other private-sector employer under the National Labor Relations Act. This memo doesn’t provide that status directly, but experts who study the NLRB describe the general counsel as being highly influential with the five-member NLRB panel that decides issues of federal labor law for the private sector. “The board’s gonna have to weigh in on this, clearly,” Abruzzo says.
College sports are a challenging environment for labor organizing, for reasons including constant turnover and the exceptional power that schools have over players. Do not expect a football union drive to force a test case of Abruzzo’s theory tomorrow. But at some point, it’s coming. “It might not happen overnight, but depending on the ethos of the individual school, team, et cetera—it’s not gonna be a cavalcade to unionize all at once,” says Michael Burwick, a sports lawyer and partner with the law firm Greenspoon Marder who works with pro sports unions as an agent. “It’s not like tomorrow, everyone’s gonna wake up and immediately within a week or two form a union. But I think that possibility, and I would call it a probability, certainly exists.”
If another college sports union drive makes its way to the NLRB, Abruzzo’s memo could be a significant factor in how the five-member board rules. Anastasia Christman, a senior policy analyst at the National Employment Law Project, thinks a memo to this effect would’ve changed the outcome of the Northwestern case in 2015, perhaps even by causing the school to tread more carefully in union-busting moves against the players early on. “What would’ve been communicated to the school authorities at Northwestern is that the body, the general counsel, the body that enforces labor law, was watching,” Christman says, and “had a clear and compelling case that these were employees, and had every intention of using the enforcement powers of the agency to protect these workers if these rights were violated.”
If even one college football program began paying athletes like employees or negotiating with a players’ union over compensation and health care, the effect could be significant. The impact would extend to public schools, too; all universities would have to decide if they were comfortable being at a recruiting disadvantage against schools that were paying and bargaining with their athletes. In states with right-to-work laws and public football schools not subject to NLRB rulings, that might be the way for athlete rights to expand in earnest. It’s an organized labor advocate’s dream, sure, but the prospect of favorable-for-athletes NLRB makes it more than just a fantasy. There’s also the chance that the looming specter of NLRB intervention leads to some other legislative or policy change that alters athletes’ working relationship with their schools.
There is also a chance the ruling reverberates outside the NLRB’s official jurisdiction, as something to be cited by courts and regulators in other places. That, too, would contribute to a snowballing effect. As Christman puts it, “This is the chief arbiter of how the National Labor Relations Act is going to be applied. [Abruzzo] lays out a very clear case and lays out the rationale for determining that these workers are employees, which then provides material to others who are engaged in thinking about these questions to pull from. This memo didn’t just come out of nowhere.” Rather it’s a product of a lot of buildup, including, as Abruzzo notes, the Supreme Court’s recognition in Alston that college sports are very much a money-making business.
There were already signs the Biden administration and Democratic politicians more broadly were interested in athlete labor rights. Immediately after his inauguration, President Biden took the unusual step of firing the Trump-appointed general counsel who had rolled back the athlete-employee memo in 2017. Biden replaced him on an acting basis with Peter Sung Ohr, who in a past life was the same NLRB regional director who ruled in the Northwestern players’ favor. Ohr stayed on as deputy when Abruzzo took over the job in July. The administration’s solicitor general sided with the athletes and reform advocates in the Alston case, too. In Congress, Sens. Bernie Sanders and Chris Murphy introduced a Senate bill in May that would grant college athletes union rights. That bill is not on the verge of becoming law, but the fact that Democrats ranging from Biden to Sanders are sending pro-athlete signals is a sign that athlete labor rights are now squarely on the radar of both the party establishment and its left flank.
NLRB general counsel terms are four years, and board members’ terms are five. Given that one president’s general counsel appointee already tossed out a pro-athlete opinion by a previous president’s pick, and now a third has reinstated it, I asked Abruzzo if she worries about the issue becoming a political football whose outlook changes with each new administration. She believes it will not, noting that “things have shifted” between 2017 and now, and that a board ruling that athletes are employees will hold up. “I believe it will be a durable decision,” she says.
The memo, especially the part that comes down on schools that misclassify and mislead athletes about their rights, is inextricable from gig-economy dynamics well outside of college sports. Labor advocates are constantly worried these days about widespread misclassification of workers as contractors, who lack union rights and certain workplace protections afforded to employees. Christman says those misclassifications have “exploded.” The NLRB seems aware, too, and Abruzzo acknowledges that she wants college football to be an entry point.
“Yeah, I mean, because so many people in this country are interested in college sports, including my son who is glued to the TV every weekend, it allows for a broader audience to actually learn about the agency and the rights that we protect,” she says. “And that’s our goal.”
In more immediate terms, the memo shows that one more instrument of American government is poised to take a hack at the college athletic industry’s long-standing economic model. The NCAA knows it’s in legal and political trouble and has already sent up signals that it’s about to reorganize itself. That more change is coming is certain. The “when” and “where” are not, but this year more than ever and this week more than last week, the old way of running college sports is on borrowed time.
