The National Labor Relations Board asserted certain college athletes can be considered employees of their universities and can unionize under the National Labor Relations Act in a memorandum issued Wednesday afternoon by General Counsel Jennifer Abruzzo.

The assertion updated the board’s guidance about the statutory rights of athletes as writ in a 2017 decision regarding Northwestern University football players petitioning the board to unionize. The board had “declined to exercise jurisdiction” over the petition over concerns with “stability in labor relations” and refused to rule whether the players were considered employees, the memo said.

Abruzzo’s memo clarifies the second position. The memo said scholarship athletes in revenue sports at private universities do meet the NLRB’s criteria for employee status, a definition which the memo said has been supported by the Supreme Court.

“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,” the memo said.

The NCAA released a statement Wednesday evening in which it refuted, without evidence, the board’s assessment.

“We firmly believe that college athletes are students who compete against other students, not employees who compete against other employees,” the statement said. “Like other students on a college or university campus who receive scholarships, those who participate in college sports are students.”

The statement said the NCAA is making “great strides in modernizing rules to benefit college athletes,” despite the association’s well-documented reticence to change except by outside forces.

The NLRB’s update was inspired by “recent developments” in collegiate athletics, a statement released with Abruzzo’s memo said. These developments include the rise of collective activism among college athletes, especially around issues of racial justice, COVID-19 safety protocols and name, image and likeness rights, the memo said.

The Supreme Court’s decision that college sports are a profit-making enterprise and that the NCAA’s claim of an antitrust exemption on the basis of amateurism is invalid also contributed to and supported the decision, the memo said.

The memo introduced the term “Players at Academic Institutions” in lieu of “student-athlete,” a term which Abruzzo asserted the NCAA “created to deprive those individuals of workplace protections.” The board will treat the continued use of “student-athlete” as a violation of the NLRA, the statement said.

Abruzzo said the memo is meant to educate the public and the NCAA about the NLRB’s position on these issues moving forward.

“I fully expect that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA that I will be taking that legal position in future investigations and litigation under the Act” Abruzzo said in the memo.

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