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Student-Athlete Employee Issue Just the Start for NLRB’s Counsel

Oct. 1, 2021, 5:51 PM

An effort to classify some college athletes as employees by the federal labor board’s top attorney could reach far beyond sports, giving additional protection to workers in other industries misclassified as independent contractors.

In a memo released Wednesday, National Labor Relations Board General Counsel Jennifer Abruzzo said she would formally ask the board to classify student-athletes as employees, a move that would give players the right to form a union and afford them legal protection against punishment for speaking out about lack of pay and other workplace issues.

While the designation would be limited to private colleges—public institutions fall outside the agency’s jurisdiction—it also could give the board an opportunity to create a separate standard punishing employers for misclassifying workers of all stripes, according to interviews with other labor lawyers who have studied the memorandum. Abruzzo herself affirms that is her intent.

While it’s only an unrealized plan at this point, business attorneys are taking notice.

“Normally, you don’t see general counsel memos that kind of look like throwing down the gauntlet, a declaration of war,” said Harry Johnson, a former Republican NLRB member who served as counsel for Amazon.com Inc. during the recent effort to unionionize the retailer’s Bessemer, Ala., warehouse.

Under the legal theory outlined in Abruzzo’s memo, college athletes not only would be considered employees of their universities but also of their sports’ governing bodies such as the National Collegiate Athletic Association which, along with their constituent schools have significant control over the athletes, and—in Abruzzo’s estimation—are therefore joint employers.

Joint Employers

An NLRB ruling to that effect wouldn’t directly affect athletes’ pay, but could allow them to collectively bargain with universities and sports leagues through a union.

In addition, universities and sports leagues also could be held liable for misclassifying athletes as independent contractors, including for use of the term “student-athlete,” which Abruzzo and others say lends a false impression that they don’t have rights to join a union or speak out about working conditions.

But the scope of the memo extends beyond athletics. The general counsel implicitly calls on the Democratic-majority NLRB to scrap a Trump-era ruling relating to all independent contractors and replace it with a more worker-friendly precedent.

Abruzzo’s tone in the memo is forceful, but one footnote carries outsize significance. It comes on Page 4 when the general counsel references a dissent in the 2019 Velox Express case, in which the then-Republican board majority established a precedent that misclassifying workers doesn’t violate the National Labor Relations Act.

Abruzzo, citing an argument written by NLRB member and current chair Lauren McFerran, says that misclassification has a chilling effect in worker speech—on college sports teams, but also in the general workforce.

That led many to wonder: Could Abruzzo be planning a broader effort on misclassification?

In an interview and a follow-up email, Abruzzo confirmed that she is.

“I could see one of these cases as a vehicle for reconsidering the misclassification as an [unfair labor practice] issue that the board rejected in Velox in a broader sense beyond college athletes, such as the misclassification of statutory employees as independent contractors, which was an issue in the Velox case,” she said.

A Big Play

Abruzzo said she hopes pursuit of such a high-profile target early in her term will capture public attention, raising awareness about workers’ rights.

“I mean, sports is a huge thing in this country,” she said in the interview. “I want an extremely robust outreach program to reach as many people as possible, and this is one way of doing that, because this memo will generate interest in a number of different communities. And hopefully, it will educate not only the workers but also their employers.”

Getting a case before the board won’t happen overnight. First, a college athlete or related party would need to file a charge, prompting an investigation and hearings on the local level.

The general counsel would then have to prosecute the complaint before the NLRB in Washington, where Democrats hold a 3-2 majority. But it’s not certain they’d go along. The board in 2015 unanimously dismissed a case asking whether Northwestern University football players qualified as employees under the National Labor Relations Act, saying that a ruling from the board wouldn’t promote stability in labor relations.

Abruzzo’s argument ups the ante. By labeling athletic conferences and universities as joint employers, athletes from multiple private schools could join under a single union, she said.

“You certainly could see a unit that would be appropriate that includes the workers of 10 academic institutions—players, private sector,” Abruzzo said.

A Shifting Landscape

Board members would need to buy into the idea that the legal landscape has shifted in the last six years, most notably through Supreme Court decision National Collegiate Athletic Association v. Alston, which said that athletic conferences can’t stop athletes from receiving education-related benefits.

“If you’re looking at a bargaining unit that would cover more of a conference or an entire conference, the legal ground has changed from 2015,” said Johnson, who was on the board at the time. “And the factual ground has changed in terms of what athletes are doing, what rules [exist], and the Supreme Court’s commentary.”

College athletes also have become more vocal. Players in 2020 spoke out about Covid-19 safety protocols under the banned of #WeAreUnited, while others demonstrated support for the Black Lives Matter movement. Speech about pay and racial justice is protected, Abruzzo said in her memo, fueled by players gaining “more power as they better understand their value in generating billions of dollars in revenue for their colleges and universities, athletic conferences, and the NCAA.”

Others doubt much changed in a legal sense. Activism around national issues notwithstanding, the relationship among athletes, their universities, and the NCAA may not be different enough to justify a change in employee status, said Peter Jones, a labor attorney at Bond, Schoeneck & King who represents colleges and universities.

“A lot of things have happened, but do they actually change the underlying analysis?” Jones said. “I don’t know that there’s a big enough difference.”

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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