HR Management & Compliance

College Athletes Are Employees? Tide Players Wouldn’t Want to ‘Bargain’ with Coach Saban

National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo recently issued a memorandum (GC 21-08) declaring certain college athletes will be classified as employees, giving them the right to unionize and engage in other protected, concerted activity. Read on to learn how things might play out in the real world.

Rammer Jammer, Yellow Hammer

The National Labor Relations Act (NLRA) doesn’t apply to the public sector, so only private colleges and universities may be affected by Abruzzo’s “call.” Our law firm is located in Birmingham at the epicenter of the Southeastern Conference (SEC) and only 50 miles from the University of Alabama in Tuscaloosa. Thus, we need not worry about Alabama football players trying to unionize and “bargain” with Coach Nick Saban.

Presumably, the student athletes at Vanderbilt University, the SEC’s lone private institution, will be smart about their rights. After all, if college athletes are employees, do their $70,000+ scholarships become taxable income?

Would student athletes on the tennis and golf teams try to negotiate for playing time if “seniority” is determining who are the top seeds? We can only imagine the transfer portal activity as players flee their private institutions for public colleges and universities.

Northwestern’s Wildcat Formation

Abruzzo’s position about student athletes isn’t novel. In 2015, a group of Northwestern University football players filed a petition for an election to be represented by the Steelworkers. The NLRB declined jurisdiction over the effort, ending the university’s unionization “season.”

The NLRB has asserted jurisdiction over graduate student-teachers and other classifications where students were paid for their services.

Bottom Line

We don’t believe the GC’s memorandum will facilitate widespread union organizing or unfair labor practice charges. The turnover rate in college sports is high as players graduate, lose their eligibility, stop playing, or transfer. Plus, the economic and practical implications of possible unionization will likely be unattractive to most.

Abruzzo’s memo is one element of a broader GC and Board initiative to expand the opportunities for unionization. The push will include tightening how independent contractors are classified as temporary employees and perhaps returning to the union election “microunits” of the Obama Board.

Richard I. Lehr is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama. You can reach him at rlehr@lehrmiddlebrooks.com.