By Harry Johnson
When a National Labor Relations Board (NLRB or the Board) regional director in December apparently took the position that a university, the Pac-12 Conference, and the National Collegiate Athletic Association (NCAA) could be considered joint employers of college athletes, it created a new path for the potential unionization of those college athletes.
Seven years ago, a similar contention came before the NLRB in the 2015 Northwestern case (full disclosure, I was on the NLRB at the time when that case came before us). The Board exercised its discretion to avoid the question of whether student-athletes could organize into a union and bargain with their school, conference, or even the NCAA itself. At the time, the NLRB said that it could not decide the issue without first having decided whether students could be classified as university employees. Just a year later, the Board examined whether graduate students at Columbia University could be considered employees under the National Labor Relations Act (NLRA or the Act). The Board found that graduate student assistants were employees under the Act, ostensibly to further the Board’s commitment to encouraging collective bargaining at colleges and universities.
That was reinforced in 2021 when the NLRB’s General Counsel, Jennifer Abruzzo, issued a memorandum (GC Memo 21-08) stating her litigation position that scholarship football players at Division I FBS private colleges and universities—a position basically applicable to all college scholarship athletes—should be classified as employees under the NLRA and receive all statutory protections. She took it another step by saying that universities that don’t classify such college athletes as employees will be in violation of the Act.
That memorandum became the basis behind the College Basketball Players Association and the National College Players Association filing unfair labor practice charges, arguing that college athletes are employees under the NLRA, which the NLRB has now decided to prosecute.
Two overarching ramifications exist from this prosecution decision. First, although the General Counsel took a position on this issue in September 2021 in GC Memo 21-08, that analysis makes no distinction between the training and commitment in the service of an individual athlete’s desire to compete and the control related to typical employer situations. The Board will have to confront that distinction in its adjudication, months or years from now. Second, the NCAA and the conferences will likely want to plan ahead strategically for either litigation outcome: athletes are NLRA employees or they aren’t.
So, how should universities, conferences, and the NCAA prepare for either outcome?
1) Think through both the upside and downside of unionization for the parties. Athletes would gain a seat at the table, and this could increase morale/recruiting of athletes, but they would lose the ability to negotiate individual deals differing from a collective bargaining agreement. Universities, conferences, and the NCAA would face higher costs generally, less discretion in their own programs, and a slower pace of change, but they would gain antitrust lawsuit immunity. The more proactive this latter “school-side” determination is, and the more unified it is, the better for all parties.
2) Prepare for how to legally engage with college athletes who are exploring organization. Under long-standing labor law rules, colleges and universities are not permitted to negatively influence or even monitor student-athletes who are involved with unions, and this includes asking athletes directly whether they support unionization.
3) Preemptively review policies that would typically be part of an athletic union negotiation. This includes any policies related to revenue shares; salary caps; name, image and likeness (NIL) rights; post-graduation rights; frequency of games or practices; team rules; Title IX issues; travel accommodations; number of free tickets to games; commercial sponsorship; and due process rights for the athletic program’s rule violations, among others.
4) Connect with your NIL team on the intersection with potential unionization claims. From a compensation perspective, most unions looking to represent college athletes will seek to eliminate existing restrictions or expand opportunities for name-, image-, and likeness-related compensation and enhance their personal brands. Colleges and universities should think through compensation models, including revenue sharing between athletes and the schools.
Harry I. Johnson, III is a partner at Morgan, Lewis & Bockius LLP and once was a member of the NLRB. He now serves clients as a management-side defense lawyer with more than 25 years of experience in traditional labor matters before the NLRB and federal courts. Harry is a co‑leader of the firm’s nationally recognized labor/management relations practice.