For decades the debate has raged over whether college athletes should get paid. But there is no question about it, according to Jennifer Abruzzo, the new General Counsel of the National Labor Relations Board.
On Sept. 29, she issued an official policy memorandum laying down the law to board employees and reversing the position taken by the Trump-era board against such a notion, which in itself was a reversal of the very direction the Obama-era NLRB had been heading on this issue.
In the process she has sought to ban the term “student athlete” as a name she says was concocted by the NCAA with the deliberate intention to deceive. “While Players at Academic Institutions [PAI] are commonly referred to as ‘student-athletes,’ I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections.”
Citing an earlier case involving Northwestern University’s football players, Abruzzo says she believes players are employees where:
• The athletes performed a service for the university and the NCAA (i.e., played football), and generated considerable profit and other benefits for the university.
• The athletes received significant compensation, including financial support for the cost of tuition, room and board, and stipends for other academic and personal expenses.
• The NCAA controlled players’ terms and conditions of employment by establishing maximum practice and competition hours, rules concerning scholarship eligibility and minimum GPA requirements, and restrictions on the amount of gifts that players may accept.
• The university controlled the “manner and means of the players’ work on the field and various facets of the players’ daily lives to ensure compliance with NCAA rules.”
Abruzzo may be on firmer legal ground than she would have been before this June when the U.S. Supreme Court rejected the NCAA’s antitrust defense that had been based on the asserted “amateurism” of college sports.
Since then, although players are not being paid salaries, they have been able to receive any education-related benefits benefits that were previously denied them, such as laptops, tutoring and study-abroad programs.
Some of the implications of the court’s decision are still being worked out. In July, the NCAA approved a names, images or likeness (NIL) policy allowing athletes to earn money through social media accounts (much like influencers), teaching camps or lessons and signing autographs, among other things.
“These changes, as well as increased collective action by college athletes across college campuses, in Abruzzo’s opinion, liken PAI to professional athletes and entitle college athletes to the protections offered under the [National Labor Relations] Act,” note attorneys Steven Porzio and Elizabeth Dailey of the Proskauer Rose law firm.
Abruzzo told the NLRB regional staff, universities, and college athletes quite clearly that misclassifying “Players at Academic Institutions” as “student athletes” who are not entitled to federal labor law protections will be pursued, as independent unfair labor practices and violations of the law.
Elsewhere in the memo, Abruzzo also said student teachers and research assistants are employees under the law, noting that she “will continue to maintain the prosecutorial position that student assistants, as well as medical interns and non-academic student employees, are protected.”
More ominously for the prominent college athletic conferences, she also wrote that she would consider applying a joint employer theory of liability, which means the NLRB would pursue charges against the NCAA and other athletic conferences that exercise control over the players as well as schools.