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NLRB’s top prosecutor proclaims college athletes are employees

November 2021 employment law letter
Authors: 
Carolyn A. Pelligrini, Zachary Kimmel, and Amy L. Piccola, Saul Ewing Arnstein & Lehr LLP

Certain college athletes are employees under the National Labor Relations Act (NLRA), according to a recent headline-grabbing memorandum from National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo. Perhaps even more notable was her warning that should “an employer misclassify Players at Academic Institutions as ‘student-athletes’ and lead them to believe they do not have statutory protections,” the agency will “pursue independent violations” of the NLRA. Under Section 8(a)(1) of the Act, an employer commits an unfair labor practice by interfering with, restraining, or coercing employees in the exercise of their right to engage in protected concerted activity guaranteed in Section 7, commonly known as “Section 7 rights.”

What you need to know

Abruzzo’s Memorandum GC 21-08 reinstated GC 17-01—issued in 2017 and subsequently rescinded by the NRLB under President Donald Trump—which concluded Northwestern University scholarship football players were statutory employees under the NLRA. The earlier decision was predicated on the Board declining to exercise jurisdiction and leaving open the question of employee status, but the GC’s new memo indicates the ruling didn’t preclude a finding that the football players at issue in that case or other similarly situated athletes at institutions of higher education are employees under the Act.

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