Impact of the Recent NLRB College Athletics Memo
The National Labor Relations Board’s (NLRB’s) general counsel issued a memo in September 2021 interpreting the statutory rights of private college athletes under the National Labor Relations Act (NLRA). The general counsel stated that these athletes are employees of the institution and are afforded all NLRA protections.
Although this memo alone doesn’t mean college athletes are now considered employees under the NLRA, it could have future implications for athletics programs at private colleges and universities. Public colleges and universities aren’t subject to the NLRA.
The NLRB is a federal agency charged with implementing fair labor practices and overseeing implementation of the NLRA. Memos from its general counsel don’t lead to enforcement, but they may influence future NLRB decisions that could lead to federal enforcement. For the memo to become enforceable, the full NLRB board would need to reach the same decision.
How Would the Same Opinion From the Full Board Affect Colleges?
If the full board decides to enforce the memo’s interpretation that athletes are employees with full enjoyment under the NLRA, here’s what that could mean for private colleges and universities:
Athletes Could Unionize
College athletes would have the right to engage in concerted activities (two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment) under the NLRA, including:
- Forming unions
- Going on strike
Significantly, employers couldn’t interfere with, or retaliate against, concerted activities. If such interference happens, employees could file an unfair labor practice charge requesting injunctive relief and backpay (if athletes are paid).
Some Colleges Could Have Multiple Athletics Unions
Under the NLRA, an appropriate bargaining unit or union is determined by whether the members have a community of interest. Separate sports at an institution likely would form their own unions. For example, football players would have their own union and not combine with gymnasts or hockey players because their working conditions are different.
Athletes Could Negotiate Their Terms of Employment
Even if athletes don’t unionize in a situation where they are deemed employees, they still would have the ability to negotiate their terms and conditions of employment. Negotiations may create more variance in how athletes are compensated, depending on the athlete’s skills and the importance of the sport for revenue or alumni support.
Unionized Athletes Could Bargain Over School Participation
Athletes in a bargaining unit may have the right to bargain with their institution over curricular requirements such as the number of courses they’re required to take.
Institutions Could Owe Athletes Minimum Wage
The Department of Labor potentially could follow the NLRB’s actions and determine athletes are employees for the purposes of minimum wage laws. The Department of Labor’s Occupational Safety and Health Administration may further determine it has jurisdiction to inspect “workspaces” and respond to safety complaints.
The NCAA’s Role Could Change
The NCAA currently oversees many aspects of college athletics for member institutions and creates rules on issues including:
- Maximum numbers of practices
- Competition hours
- Scholarship eligibility
- Limits on compensation
- Minimum grade point average
- Restrictions on gifts and benefits players may accept
A full NLRB decision likely would restrict the NCAA’s oversight in these areas. Alternatively, if the NLRB decides that institutions are joint employers with the NCAA, the NCAA could have a duty to bargain along with the institution. If many institutions bargain jointly with the unions, this could raise antitrust issues.
Title IX Compliance Could Become More Complicated
Title IX requires that male and female athletes receive equitable opportunities to participate in athletics and receive equitable athletics benefits. Treating athletes as employees could create Title IX compliance complications, including:
- Unequal benefits for non-revenue teams. If players from revenue sports in major college conferences have more leverage to get what they want during bargaining, non-revenue sports likely would get lesser benefits. For example, football teams that bring in money through ticket sales might bargain to receive a new football field while crew teams that cost more money than they generate might have to use broken boats. This could disproportionately affect female teams.
- Fewer participation opportunities for women. One method for demonstrating Title IX participation compliance is showing that women receive an equal proportion of athletic opportunities. If schools must bargain with teams regarding the number of players on the roster, the bargaining process could potentially skew the proportion of male and female athletes.
- More difficulty eliminating team sports. Schools that are out of compliance with Title IX sometimes eliminate men’s teams to reach proportionality. If the students on a sports team organize, the institution would have to bargain with the team first and reach an impasse before it could eliminate the team.
What Steps Should You Take Now?
Start a conversation about how your institution might react to the possible outcomes. Discussions should involve legal counsel, athletics staff, and administration. In addition to advising on the hypotheticals at play in the short term, legal counsel can help watch for developments around the country over the coming months and years.
This issue — along with recent developments around athletics educational benefits generally and Name, Image, and Likeness (NIL) allowances specifically — create risks for athletics departments.
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About the Author
Associate General Counsel for Resolutions Management