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College Athletes Should Have Collective Bargaining Rights, NLRB Memo Says

Though initially only impacting private schools, the memo could have a “ripple effect” throughout college sports.

The California Golden Bears run out on to the field for their game against the UCLA Bruins at California Memorial Stadium on October 13, 2018, in Berkeley, California.

On Wednesday, the National Labor Relations Board (NLRB) published a memo that could lead to some college and university student-athletes receiving compensation and collective bargaining rights in the near future.

The memo was written by Jennifer Abruzzo, the general counsel for the NLRB. In it, she discussed how, under the terms of the National Labor Relations Act (NLRA), athletes in collegiate sports should be allowed to negotiate their wages and working conditions, given that they perform certain services for the institutions where they perform in sporting events.

“Players at Academic Institutions perform services for institutions in return for compensation and [are] subject to their control,” Abruzzo wrote. “Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law, fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”

Within the memo, Abruzzo cited a Supreme Court ruling issued this past summer wherein the justices unanimously decided that student-athletes had the right to receive income from their own names, images and likenesses.

If the opinion by Abruzzo is eventually adopted by the board, it could pave the way for athletes at private colleges and universities (and perhaps eventually public institutions) to file a complaint and receive what would effectively be rights received by workers who belong to unions.

Athletes at such institutions should receive National Labor Relations Act protections “when they 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,” Abruzzo added in the memo.

Abruzzo also said that she could, “in appropriate cases,” pursue workers’ rights violations if a private school misclassified sports players as “student-athletes” undeserving of such needs or recognitions.

Any action by the NLRB on this matter would likely not affect athletes at publicly funded campuses, because the board ruled that such institutions were outside of its purview in 2015. But private school athletes could reinvigorate the effort to give student-athletes more rights in the years ahead, which could ultimately lead to the inclusion of public school athletes further down the line.

Abruzzo is “inviting a petition from players to form a union at a private institution,” said University of Illinois labor law professor Michael LeRoy, who spoke to USA Today. “She’s put it out there. She’s saying, ‘Bring it.'”

A ruling at a private college could have a “ripple effect throughout the NCAA,” LeRoy added, eventually making its way to publicly funded campuses.