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NLRB General Counsel Concludes Private College Athletes Are Employees

The NLRB General Counsel recently described her position regarding labor law coverage of "student athletes" at private academic institutions. In short, she has taken a position that they are employees under the National Labor Relations Act, and accordingly, are entitled to organize, and bargain collectively to improve their terms and conditions of employment. The NLRB does not have jurisdiction over public employers, including public universities and colleges.

It should be noted that the General Counsel based her position, in part, on the U.S. Supreme Court's decision in NCAA v. Alston, the decision that recognized that college sports is a profit making enterprise, and which led the NCAA to expand athletes' rights to their names and images and profits associated with them.

It should also be noted that the General Counsel can announce her office's position on various labor related issues and can even seek out suitable cases to litigate which would appear to present an opportunity for the full National Labor Relations Board to adopt her theories. The issue of student athletes as employees has not been recently litigated before the NLRB, and it will not become law until the NLRB, which now has a majority of members appointed by this Presidential Administration, adopts it as law. It appears certain that even if that happens, the issue will be appealed to a federal Circuit Court of Appeals, and then perhaps to the Supreme Court before it is finalized.