Earlier this week, National Labor Relations Board (NLRB) general counsel Jennifer Abruzzo issued a memorandum asserting that athletes at private universities are employees with the right to negotiate and unionize. The updated guidance also states that it’s illegal for schools to retaliate against athletes who organize and that institutions could be targeted by the NLRB if they continue to use the term “student athlete.”
Abruzzo’s memo effectively reinstates a 2017 document issued by Barack Obama–appointed general counsel Richard Griffin — and rolled back under Donald Trump — but her memo goes further than Griffin’s. It’s a huge win for athletes hoping to unionize and for the broader cause of labor rights in the United States.
For years, despite athletes generating oodles of money for their schools without compensation, the National Collegiate Athletic Association (NCAA) has fought off every attempt to organize athletes. But even before this week’s decision, the cracks were forming.
In 2014, the National Labor Relations Board in Chicago ruled that football players at Northwestern University were employees that could unionize. The NCAA appealed the ruling, and the NLRB ultimately rejected the athletes’ petition while sidestepping the compensation issue.
“We emphasize that this case involves novel and unique circumstances,” the decision read. “The Board has never before been asked to assert jurisdiction in a case involving college football players, or college athletes of any kind. There has never been a petition for representation before the Board in a unit of a single college team or, for that matter, a group of college teams. And the scholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes.”
That same year US District Judge Claudia Wilken ruled that the NCAA was violating antitrust law by prohibiting athletes from profiting off their Name, Image, and Likeness (NIL). Her decision came in response to a 2009 lawsuit that was filed against the NCAA by Ed O’Bannon, a basketball star at UCLA during the 1990s. O’Bannon, the key player in UCLA’s 1995 championship run, launched his legal challenge after recognizing himself and the rest of the title team in a video game.
The NCAA appealed Wilken’s ruling, and the Ninth Circuit issued a decision that favored the college sports league. While the court agreed with Wilken’s view that the compensation rules were unlawful, it insisted that the NCAA had to “maintain its tradition of amateurism in support of the college sports market.” Schools could provide up to the cost of attendance to athletes, but nothing more.
This year, the cracks began to widen again. First, the Supreme Court upheld lower court rulings in US vs. Alston, eliminating the limits that players can obtain from NIL. The concurring opinion was written by Justice Brett Kavanaugh of all people. “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate,” he wrote. “And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”
Days after the SCOTUS ruling in June, Judge Wilken was back in the news — this time for denying yet another request from the NCAA to have a lawsuit thrown out. This one, filed by Arizona State swimmer Grant House and Oregon women’s basketball player Sedona Price, doesn’t just target the restrictions on NIL compensation. It also argues that athletes are potentially entitled to a cut of the television-rights money.
But Abruzzo’s historic memo might later be viewed as the crucial crack in the NCAA’s feudal-like edifice. The NLRB’s regional offices are guided by the general counsel, and schools looking to union-bust are now aware they’re being watched closely. And while the document only applies to private schools, it could potentially impact public universities as well, since both compete against each other.
In fact, Abruzzo’s memo declares that “similarly situated players at academic institutions” are also employees and cites the College Athlete Right to Organize Act, a bill introduced earlier this year by Senators Bernie Sanders and Chris Murphy. “College athletes are workers,” Sanders said after introducing the legislation. “They deserve pay, a union, and to own their own name, image, and likeness. We cannot wait for the NCAA to share its billions with the workers who create it. It is long past time we gave these workers the rights they deserve.”
In 2018, Ed O’Bannon talked to Sports Illustrated about his fight. “At that age, you do as you’re told,” he explained. “You don’t ruffle any feathers. You’re told that the position that you’re in is one that you can’t mess up, or don’t take for granted. You’re a kid and you keep your mouth shut, you keep your head down and you work hard. You’re best seen and not heard from. When you’re in the throes of it all as an athlete, you see it and recognize it and you even talk about it with your classmates and your teammates. But there isn’t a whole lot you can do because there’s no representation.”
This week’s NLRB memo might very well change that.