Top Lawyer At NLRB Says College Athletes on Scholarship Are Employees, Threatens to Take Legal Action Against NCAA & Conferences!
The top dog lawyer for the National Labor Relations Board issued a memo today blatantly threatening legal action against the NCAA or any athletic conference or association that tries to stop athletes at Universities from forming a union or enforcing their rights as employees to fair wages and labor protections that exist under federal law.
Jennifer Abruzzo said unequivocally that players with scholarships at academic institutions are in fact employees under the (National Labor Relations) Act, which would lend them a whole host of guarantees and protections under the law.
She then promises to enforce this prosecutorial position by taking action against the NCAA and any Conference or Athletic Association that tries to get in the way of athletes forming a union to collectively bargain or that prevents athletes from pursuing their rights to fair pay.
“Misclassifying such employees as mere “student-athletes”, and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the Act,” says Abruzzo, accusing the NCAA of violating federal labor law by the mere categorization of players as amateurs.
Abruzzo says the use of the term “student athlete” was created to “deprive those individuals of workplace protections.”
She then quotes an article that explains how the NCAA’s president and lawyers coined the term “student- athlete” in the 1950s to “avoid paying workers’ compensation claims to injured athletes and says the NCAA continues to utilize it in litigation involving rights of college athletes.”
Abruzzo says her conclusion that scholarship players are employees is supported by the “statutory language and policies of the NLRA” and that the Supreme Court supports the board’s expansive definition of employee.
Under the law, an employee includes a person “who perform[s] services for another and [is] subject to the other’s control.” Any payment, is also strongly indicative of employee status.
“Players at Academic Institutions perform services for their colleges and the NCAA, in return for compensation, and subject to their control,” Abruzzo writes.
She notes that the NCAA generates tens of millions of dollars in profit from the athletes’ services. Scholarship money, including funds covering tuition, fees, room, board, and books, and a stipend covering additional expenses such as travel and childcare are compensation that would indicate employee status.
Further, the NCAA “controls the players’ terms and conditions of employment, including maximum number of practice and competition hours, scholarship eligibility, limits on compensation, minimum grade point average, and restrictions on gifts and benefits players may accept.”
The services, compensation and use of compliance as a means of control, neatly places athletes at universities into the employee category, according to the legal eagle.
“The university controls 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; for example, the university maintains detailed itineraries regarding the players’ daily activities and football training, enforces the NCAA’s minimum GPA requirement, and penalizes players for any college or NCAA infractions, which could result in removal from the team and loss of their scholarship,” reads the memo.
Employee status under the NLRA not only provides individual rights but also ensures collective protection when players act in concert.
Abruzzo’s memo is an invitation to athletes to literally start to organize a union tomorrow and act “concertedly to speak out about their terms and conditions of employment, or to self-organize, regardless of whether the Board ultimately certifies a bargaining unit” and she is promising to ensure they are protected from penalty and retaliation for doing so using her “prosecutorial” powers.
Abruzzo ends her brazen memo with a full on threat for the mere use of the term “student athlete,” saying, “I will pursue an independent violation of Section 8(a)(1) of the Act where an employer misclassifies Players at Academic Institutions as “student-athletes.”
Theoretically, the NLRA’s position in combination with the NCAA vs. Alston Supreme Court ruling means athletes have strong grounds to assert entitlement to federal labor protections, regardless of whether they form a collective bargaining unit. This includes wage and hour protection, workers compensation, health and safety protections guaranteed by law, and unemployment benefits, among others.
As Abruzzo points out, the Supreme Court, in Alston recognized that “college sports is a profit-making enterprise and rejected the NCAA’s antitrust defense based in the notion of amateurism in college athletics.”
“Justice Kavanaugh, in his concurring opinion in Alston, went further,” Abruzzo continued. “He strongly suggested that the NCAA’s remaining compensation rules also violate antitrust laws and questioned “whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share” of the billions of dollars in revenue that they generate. Moreover, he suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by “engag[ing] in collective bargaining.”
Abruzzo says the increase in Name, Image, Likeness sponsorships, endorsements and other opportunities will lead to more compensation to support employee status. She also points out that the empowerment of athletes has led to concerted activities most notably in the realm of social justice. This collective action is akin to labor strikes when they occur, she claims.
“Activism concerning such racial justice issues, including openly supporting the Black Lives Matter movement, directly concerns terms and conditions of employment, and is protected concerted activity,” Abruzzo writes.
“…this increased activism and demand for fair treatment has been met with greater support from some coaches, fans, and school administrators. Players at Academic Institutions who engage in concerted activities to improve their working conditions have the right to be protected from retaliation.”
Abruzzo ended with another full on threat to take legal action within her powers as NLRA top lawyer against Conferences and the NCAA. “I will consider pursuing charges against an athletic conference or association even if some member schools are state institutions.”
It is important to note that the College Athlete Right to Organize Act was introduced in the Senate back in May. If passed it will formally change the NLRA’s definition of “employee” to expressly include certain college athletes, including those attending public institutions, and give them the right to collectively bargain.
A union is most definitely on the immediate horizon but it also seems that athletes can begin initiating their own individual claims as well.
Employees may submit complaints to the NLRB and while the NLRB cannot assess penalties for violations, it strongly pushes for and facilitates settlements and provides representation for complainants.
The agency can seek reinstatement and backpay for discharged workers, and informational remedies as well as petition District Courts for temporary injunctions to restore the status quo when violations occur such as requiring parties to bargain or reinstating unlawfully discharged employees.
The NCAA and Universities should be scrambling to figure out how to handle their taxes now that they are (at least according to the NLRB lawyer) employing tens of thousands of athletes.