Biden NLRB Counsel Says College Athletes are Employees

College athletes got one step closer to being recognized as employees on Wednesday. In a memorandum, the National Labor Relations Board’s general counsel said that certain college players “are employees” and that they should be protected by labor laws, including those that protect employees when they make efforts to unionize.

Though Jennifer Abruzzo, who was appointed the NLRB’s general counsel by President Biden this year, does not have voting power on the labor-relations board, her memo sends a strong signal that the administration might back college players who seek to claim the rights that employees are guaranteed. The NLRB or a federal judge could still disagree with her.

Nonetheless, scholars called the memo an important and long-overdue milestone in a decades-long effort to protect college athletes.

“It’s hugely significant,” said Robert A. McCormick, an emeritus professor at Michigan State University’s College of Law, who has written several articles on college athletics with his wife, Amy C. McCormick,also an emeritus professor at Michigan State. “We’re very gratified to see these changes happen.”

Abruzzo wrote in the memo that universities should not mislead college players into believing they are not employees. She took issue with the term “student-athletes,” calling it a misclassification of college players, and warned that using it could be construed as an attempt to lead players to believe that they’re not protected by labor laws.

“In appropriate cases, I will pursue an independent violation of Section 8(a)(1) of the Act where an employer misclassifies Players at Academic Institutions as student-athletes,” Abruzzo wrote.

The National Collegiate Athletic Association invented the term “student-athlete” in order to “prevent people from viewing these athletes as employees,” Amy McCormick said. (The term’s origins as a means of fending off workers’ compensation claims are well documented.) She interpreted Abruzzo’s letter to mean that the general counsel might see it as a violation of law if the NCAA or a university were to use the term to try to dissuade players from knowing they have rights.

In a statement Wednesday evening, the NCAA reiterated its position that athletes are students, not employees. “With college sports embedded within the higher education experience, we firmly believe that college athletes are students who compete against other students, not employees who compete against other employees,” the association wrote, in part.