Activist NLRB set to alter the business model

On September 29, 2021, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued Memorandum GC-21-08, stating her position that certain college athletes should be considered employees. Regardless of its impact on college athletics and on the challenged role of the NCAA in college sports, liberating Division I athletes was not the real target of the memo. Indeed, few people in the labor trenches have much interest in the status of often-cossetted Division 1 athletes who already enjoy special gyms, training tables, special classes, and generally special treatment during their time as "student-athletes."

One reason the memo hasn't caused more consternation even among college sports fans (or labor lawyers) is that it does not apply to public institutions. So the Alabamas, Kentuckys, Carolinas, UCLAs, and Ohio States are unaffected. Notre Dame, USC, Stanford, Duke, and Gonzaga may be adding labor counsel to their own general counsel offices, but an NLRB General Counsel memo is not a magic wand: No college athlete is suddenly converted to "employee" because Abruzzo wishes it so.

There first must be a claim, a charge, an organizing petition, something to start the creaky machinery of the NLRB moving. And it is by no means certain even a Democratic majority of the Board will agree. The Obama NLRB rejected a union organizing petition from Northwestern athletes, deeming them students, not employees, and the Board may do so again in the future—and so may reviewing courts. The athletes may not be the main issue here, but the memo is nonetheless significant for the future of President Joe Biden's prounion/proworker agenda.