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The National Labor Relations Board’s acting general counsel on Friday rescinded a memorandum issued by his Biden-administration predecessor that said she viewed college athletes as employees of their schools under the National Labor Relations Act.
Friday’s memorandum from the Trump administration’s William B. Cowen rescinded an array of memoranda that had been issued by Jennifer Abruzzo, including the one from September 2021 that was accompanied by a statement from Abruzzo in which she wrote:
College athletes “perform services for institutions in return for compensation and (are) subject to their control.
“Thus, the broad language of … the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain (college athletes) are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”
Friday’s memorandum comes against the backdrop of longstanding efforts by the NCAA, conferences and universities to pursue federal legislation that would prevent college athletes from becoming employees of their schools. A bill to that effect passed a U.S. House committee in June 2024, but went no farther.
The new memo comes two days after the new Trump administration’s Education Department rescinded guidance issued in the final days of the Biden administration’s Education Department that stated that compensation paid by colleges to their athletes for use of their name, image and likeness (NIL) is subject to Title IX gender-equity policies.
Cowen wrote in Friday’s memorandum: “Over the past few years, our dedicated and talented staff have worked diligently to process an ever-increasing workload. Notwithstanding these efforts, we have seen our backlog of cases grow to the point where it is no longer sustainable. The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.
“Since assuming the role of Acting General Counsel, working with experienced field and headquarters professionals, I have conducted a comprehensive review of active General Counsel Memoranda and determined that the following actions are warranted,” including the recission of the college-athlete memo.
Abruzzo’s memorandum helped set the foundation for unionization efforts by Dartmouth men’s basketball players and a complaint by NLRB’s Los Angeles office against the NCAA, the Pac-12 Conference and the University of Southern California that alleged they had unlawfully misclassified college athletes as “student-athletes” rather than employees.
Both of those efforts were abandoned in December and January, respectively, primarily because of concerns that an adverse decision by the full NLRB, as it was likely to be constituted under the then-incoming Trump administration, would carry the weight of precedent in the future.
The complaint against the NCAA, Pac-12 and USC specifically revolved around athletes in football, men’s basketball and women’s basketball at USC. However, it carried the potential for much broader implications across college sports college sports.
The National Labor Relations Act applies to private employers. The complaint sought to interconnect the NCAA and a major college-sports conference — both of which are private, non-profit organizations — to athletes’ alleged employment at a private school in a way that would have allowed the NLRB to take the position that every college athlete has a private employer: the NCAA and/or a conference. That, in turn, could have opened the door to the possibility of unionization efforts by athletes at public schools.
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