Should Student Athletes Be Recognized As Statutory Employees under the NLRA?

By: Spencer Bauer

General Counsel Jennifer Abruzzo of The National Labor Relations Board has issued a memo that states that student athletes may become “employees” under the National Labor Relations Act and will be entitled to employee protections. General Counsel Abruzzo stated that, “players at Academic Institutions perform services for institutions in return for compensation and subject to their control. 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...” Granting employee status and protections to student athletes will drastically change the landscape of college athletics. Will this shift be beneficial for student athletes? Or do student athletes have more to lose than win in becoming employees of their respective universities? Either way, it would likely mean the end for the NCAA.

Granting student athletes Section 7 rights will allow them to collectively bargain as employees. It is hard to argue that giving student athletes a voice and allowing them to collectively bargain with their athletic program would be detrimental to student athletes. However, this one positive is very unlikely to outweigh the numerous downsides and uncertainties that come with student athletes becoming statutory employees.

One of the main issues with granting employee rights to student athletes is that the majority of universities are state universities and state employees are not covered by the NLRA. Thus, only student athletes participating in athletics at private universities would be entitled to these employee benefits and protections. With only about a third of student athletes being able to become employees, this would create a wide array of issues involving competitive advantages in recruiting and player services. This would especially affect NCAA Men’s Basketball that is already losing many top caliber athletes to professional leagues. If student athletes would be designated as employees of their respective universities, why would professional caliber basketball players choose to be an employee and still have to go to school when they could just be an employee of a professional basketball league and make substantially more money than they would if they decided to go to school? If this memo develops into an official NLRB decision and disrupts the current model of the NCAA, March Madness will never be the same.

General Counsel Abruzzo cites the Northwestern University NLRB case to argue that since the NCAA controls the players’ terms and conditions of employment, that student athletes would be employees of their respective athletic conferences and of the NCAA itself.

Designating all student athletes as employees of the NCAA as a whole would allow student athletes at state universities to be considered statutory employees that would otherwise be excluded from the NLRA. However, this argument seems fairly stretched and unlikely since the NCAA is not directly paying student athletes. Universities indirectly compensate student athletes by awarding scholarships, room and board and paid educational benefits, but student athletes are not directly paid by their universities for the sole purpose of playing their respective sport. With only a third of student athletes being able to receive employee benefits, it seems rather unlikely that this will come into law and disadvantage the majority of student athletes.

Even if the NLRB were to execute a decision and grant employee rights to student athletes under the NLRA, would student athletes want to be employees of their universities? If student athletes were to be granted employee status, would they be subject to an employment at will standard? Could student athletes be able to be terminated for poor behavior or poor performance on the field? Will this bring rise to numerous wrongful termination lawsuits involving universities and student athletes? It seems that there are far too many issues surrounding this potential decision to change the employee status of student athletes. Although the General Counsel has put out this memo with her view on the issue, the status of student athletes has not changed and will not likely change for quite some time.