Do College Athletes Have the Right to Join a Union? The Answer is Still “Maybe”

Overview: Back in September 2021, the National Labor Relations Board general counsel issued GC Memorandum 21-08, formally taking the prosecutorial position that certain college and university athletes are employees entitled to all of the rights guaranteed by the National Labor Relations Act. This would include the right to engage in certain protected concerted activities, such as strikes, and to organize to join a union. For private colleges and universities, formal, legal recognition of student-athletes as “employees” would significantly change the relationship between schools and athletes.

Discussion: Back in September 2021, General Counsel Jennifer Abruzzo of the National Labor Relations Board (the “Board”), who leads the enforcement arm of the Board, issued GC Memorandum 21-08, formally taking the prosecutorial position that certain college and university athletes are employees entitled to all of the rights guaranteed by the National Labor Relations Act (the “Act”). This would include the right to engage in certain protected concerted activities, such as strikes, and to organize to join a union.

This is not the first time a Board general counsel has taken this position; Richard Griffin, appointed by President Barack Obama, issued a similar memorandum in 2017 that was later rescinded by his Republican successor, Peter Robb, appointed by President Donald Trump. Abruzzo, however, has taken this legal analysis a step further, arguing that “misclassifying” collegiate athletes as mere “student-athletes,” and leading athletes to believe that they do not have statutory protections, violates the Act in and of itself.

For private colleges and universities (the Act does not apply to public institutions of higher education), formal, legal recognition of student-athletes as “employees” would significantly change the relationship between schools and athletes. To start, schools would have to guess whether an athlete qualifies as an employee in the first place. Guessing incorrectly could have expensive consequences, as merely mislabeling the student could risk violating the Act and require defending against the ensuing charge.

As employees, athletes would have the right to engage in collective action, which could clash with school codes of conduct or campus rules. And, should student-athletes choose to organize and vote to join a union, the school would be required to engage in good faith collective bargaining over wages, hours and other terms and conditions of the athletes’ “employment.” The implications of such an arrangement could be significant: Would this require negotiations over the costs of meal plans and housing? What about school-sponsored health insurance plans? Would student-athletes gain the right to have union representation in disciplinary proceedings? Classifying a school’s athletes as employees would undoubtedly unleash a Pandora’s box of issues and questions.

Since publishing the memorandum over a year ago, Abruzzo’s office has yet to prosecute a test case that would give the Board (currently a 3-2 Democrat majority) the opportunity to formally adopt the position that certain student-athletes are employees under the Act. However, private colleges and universities should not assume that this agenda item has been forgotten.

There are a couple of pending cases against the National Collegiate Athletic Association alleging that it has misclassified student-athletes. And, on December 15, 2022, Abruzzo announced that her office found merit in at least one pending unfair labor practice charge case, which could result in a formal charge (giving her a pathway to litigate the issue up to the Board). Meanwhile, there are other legal efforts to classify collegiate athletes as employees through legislative or judicial action.

In short, private colleges and universities should stay alert to this classification issue and keep an eye out for signs of union organizing among college athletes, particularly football players at Division I Football Bowl Subdivision private colleges and universities. Though it is impossible to predict how this battle over collegiate athletes will unfold, one thing is certain: It is not going away any time soon.

For More Information

If you have any questions about this Alert, please contact Elizabeth Mincer, Zev Grumet-Morris, Katherine Brodie, or any of the attorneys in our Education Industry Group or the attorney in the firm with whom you are regularly in contact.

U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Two

Yesterday, October 14, 2021, UpdateED published the first of a three-part recap of last week’s U.S. Department of Education Negotiated Rulemaking Session, focusing on the proposed Borrower Defense to Repayment provisions. (see here)

Up today: the proposed changes to Closed School Loan Discharges (CSLD) and False Certification Discharges (FCD). Continue reading “U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Two”

Duane Morris Analyzes USDE’s Notice Establishing Negotiated Rulemaking Committee and First Round of Negotiation Topics

On August 6, 2021, the U.S. Department of Education (USDE) announced that it would be establishing a negotiated rulemaking committee, entitled the “Affordability and Student Loans Committee,” that will, starting in October, meet to begin rewriting certain Title IV-related regulations. The announcement also included a schedule for the virtual negotiation sessions and instructions on how to submit nominations for committee, subcommittee, and advisor spots. The full announcement, officially published on August 10, can be found here.

Continue reading “Duane Morris Analyzes USDE’s Notice Establishing Negotiated Rulemaking Committee and First Round of Negotiation Topics”

USDE Publishes Six Proposed Priorities, Gives Insight Into Biden Administration’s Agenda

On June 30, 2021, the U.S. Department of Education (USDE) published a list of six proposed priorities regarding discretionary grant programs for Secretary Cardona and the Biden Administration’s education agenda. While the priorities mostly cover K-12 issues and a policy response to COVID-19, one particular entry (Priority #5) may provide insight into the Department’s thinking regarding the upcoming regulatory agenda, which is set to kick off later this month.

Continue reading “USDE Publishes Six Proposed Priorities, Gives Insight Into Biden Administration’s Agenda”

U.S. Department of Education Proposes Massive Rewrite of Title IV Regulations

Later this month the Department of Education will embark on the first steps towards a massive rewrite of programs authorized by Title IV of the Higher Education Act of 1965. The Department is seeking input on a wide range of federal higher education topics, as identified in the notice, as well as input on how the Department could address gaps in postsecondary outcomes such as retention, completion, loan repayment, and student loan default by race, ethnicity, gender, and other key student characteristics. Continue reading “U.S. Department of Education Proposes Massive Rewrite of Title IV Regulations”

Why You Should Require Students to Get Vaccinated as COVID Retreats

We have entered a new phase in the COVID-19 pandemic in the United States.

We no longer wake up every day to increasing numbers of deaths, infections, and reminders about social distancing and vaccine shortages. Instead, we now read about record low numbers of infections, limited fatalities, and a domestic surplus of vaccine so large that we are now vaccinating children as young as 12 and may be exporting it by June.

And, just last week, the CDC dispensed with mask guidance for vaccinated people. This prompted President Biden to host his first “maskless” appearance of his presidency. For college leaders planning the summer and fall semesters, it’s a 180-degree turnaround that we were afraid to hope for just last year.

Yet here we are. The question now vexing colleges is how to safely reopen on-ground learning with a pandemic in retreat. It’s a nice problem to have, but it still has to be solved.

To read the full text of this article by Duane Morris partner Edward M. Cramp, please visit the University Business website.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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