By Professor Robert J Romano, JD, LLM, Senior Writer
In March 2014, the National Labor Relations Board (NLRB) Regional Office in Chicago, after receiving a petition from Kain Colter, then a quarterback at Northwestern University, determined that members of the Northwestern football team who are receiving academic scholarships are “employees” within the meaning of the National Labor Relations Act (NLRA) and therefore, have the right to form a labor union to collectively bargain on their behalf.[1] The NLRB Chicago Office based its determination on the following facts:
- The football program generated revenue that totaled approximately $235 million between 2003 and 2012, such that the players performed valuable services for the university.
- The players were “compensated” via scholarships equal in value of up to $76,000 per year.
- The players were engaged in football activities all year-round and devoted between 40-50 hours a week to football activities during many months, which is often more time than they devoted to academics.
- The football coaching staff exerted incredible control over the players, not only requiring them to practice and attend meetings on a rigid schedule throughout the day but also requiring them to seek some type of approval before they could make living arrangements, apply for employment, purchase vehicles, travel off campus, post items on social media forums, and speak to the media.[2]
Consequently, Northwestern University appealed the Regional Office’s decision to the full National Labor Relations Board in Washington, D.C. That office, in August of 2015, did not rule on the merits of Colter’s petition or the appeal, but instead declined to exert jurisdiction over the matter and by doing so, preserved one of the NCAA ’s core principles: that college athletes are students and not employees. The D.C. Office never determined whether student-athletes are employees, finding instead that Colter’s petition could potentially have a wide-ranging impact on college sports and therefore would not promote “stability in labor relations.”[3] As per its decision, “The Board has never before been asked to assert jurisdiction in a case involving college football players, or college athletes of any kind. Even if scholarship players were regarded as analogous to players for professional sports teams who are considered employees for purposes of collective bargaining, such bargaining has never involved a bargaining unit consisting of a single team’s players.”[4]
By 2021, college sports were in a whole new post-O’Bannon, post-Alston, post-Trump 1.0 Administration, social media driven world. As a result, on September 29, 2021, NLRB General Counsel, Jennifer Abruzzo issued an ‘updated’ memorandum solidifying the NLRB’s current position wherein ‘certain’ “Players at academic institutions (sometimes referred to as student athletes), are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.”[5] Abruzzo’s memo declared that “Players at academic institutions perform services for institutions in return for compensation and subject to their control. 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.”[6] Additionally, Abruzzo warned colleges and universities against classifying players as ‘student-athletes’, and if such classification continued the NLRB would “pursue independent violation” against those academic institution.[7]
But now it’s 2025, Trump and Musk have established themselves on Pennsylvania Avenue and the fight for student-athlete rights has again taken a darker, more Dogeian turn. On February 14, 2025, Acting General Counsel of the NLRB, William Cowen, issued a memorandum rescinding numerous orders announced by former General Counsel, Jennifer Abruzzo, with one of them being GC Memo 21-08 “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act”.[8] Mr. Cowen’s memo comes when efforts by the NCAA, the individual college conferences, and the colleges and universities themselves, have systematically lobbied Congress to pass federal legislation that would preclude student-athletes, both male, female and trans, from being classified as employees of their schools. In fact, in June of 2024, a bill codifying such was passed by a House Committee but failed to advance to the floor for a vote.[9]
Abruzzo’s GC Memo 21-08 recognized the illogicality of not paying student-athletes whose skills are the catalyst that drive this billion-dollar industry known as college sports. An industry that allows for coaches to be paid millions, the athletic directors and administrators to be paid, and everyone else associated with the games and events to be paid, but not the student-athletes themselves.
But now the Trump/Musk administration, not known for being logical, has flipped this notion of paying people for their hard work on its head, while also doing the college sport industry a “solid”, by thwarting the decades long efforts of student-athletes to gain protections afforded them under labor law and with that, a right to have a seat at the table when it comes to collective bargaining. Although the House v. NCAA settlement allows a limited form of revenue sharing, it does not allow student-athletes the right to negotiate any term related to wages, hours, or conditions of employment. Any compensation they would receive is capped at an arbitrary amount decided by the NCAA and its member institutions, with no direct input from the athletes themselves. Now that doesn’t seem fair, does it?
[1] https://www.archerlaw.com/nlrb-regional-director-rules-northwestern-football-players-are-employees-and-can-unionize/
[2] https://www.sbnation.com/college-football/2014/3/27/5551014/college-football-players-union-northwestern-nlrb
[3] General Counsel Memo 21-08 08 “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act.
[4] Id.
[5] https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status
[6] Id.
[7] Id.
[8]General Counsel Memo 25-05, Feb. 14, 2025.
[9] H. Rept. 118-573.
