The General Counsel for the National Labor Relations Board (NLRB) is now pursuing claims on behalf of student athletes at private schools in an effort to classify them as employees.
This will be a case of first impression under the National Labor Relations Act (NLRA), said Stanford Professor William B. Gould IV, former chairman of the NLRB.
“There is a considerable restiveness in our society and in the universities about the fact that the players, without employee status, cannot share the abundance that is available to the university through college sports,” Gould said.
William Gould
| https://law.stanford.edu
Following the June 2021 U.S. Supreme Court ruling in the antitrust lawsuit, National Collegiate Athletic Association v. Alston, the NCAA adopted a policy that was to allow athletes to receive compensation in deals involving their name, image, and likeness (NIL), but has not adopted a policy to pay them as employees.
The new claim follows earlier action by Jennifer Abruzzo, the NLRB general counsel who in 2021 issued a memo about the status of student athletes and their ability to form a union with the NCAA as their employer.
Gould noted that under the NLRA, it would be precedent-setting.
“There are some cases under the Fair Labor Standards Act (FLSA) and other statutes where courts have indicated in dicta that under certain circumstances college athletes could be employees," Gould said.
But there hasn’t been any legal precedent to classify athletes at educational institutions as employees.
“There's been no cases squarely holding that the college athletes are employees that I'm aware of,” Gould said.
Still, the unanimous Supreme Court decision in NCAA v. Alston looked skeptically at the view that college sports are completely amateur enterprises, Gould said. Justice Brett Kavanagh also filed a concurring opinion.
A news release from the National College Players Association notes that the NLRB claim names USC, the Pac-12, and NCAA.
An ESPN.com report included a statement from USC.
U.S. Senators Chris Murphy, D-Connecticut, and Bernie Sanders, I-Vermont, also have introduced the College Athlete Right to Organize Act.
“Congress has indicated thus far they don’t want any part of this; that could change in the future,” Gould said. “There is general sense there are inequities in college sports.”