Rescission of College Athlete Employment Status
On Friday, the acting general counsel of the National Labor Relations Board (NLRB), William B. Cowen, overturned a memorandums issued by his predecessor, Jennifer Abruzzo, under the Biden administration. These memoranda had recognized college athletes as employees of their schools under the National Labor Relations Act (NLRA).
Abruzzo’s September 2021 memorandum argued that college athletes "perform services for institutions in return for compensation and (are) subject to their control." Based on this, she concluded that "certain (college athletes) are statutory employees, who have the right to act collectively to improve their terms and conditions of employment." This memorandum supported unionization efforts by college athletes and a complaint filed by the NLRB’s Los Angeles office against the NCAA, the Pac-12 Conference, and the University of Southern California (USC).
However, Cowen’s recent memorandum rescinded these rulings, claiming that the NLRB faces an unsustainable backlog of cases. He stated that "we have seen our backlog of cases grow to the point where it is no longer sustainable" and that "if we attempt to accomplish everything, we risk accomplishing nothing."
Background on College Athlete Unionization
The recission of the college athlete employment status memorandum comes amidst ongoing efforts by the NCAA, conferences, and universities to prevent college athletes from becoming employees of their schools. In June 2024, a bill to this effect passed a U.S. House committee but failed to progress further.
Abruzzo’s memorandum provided a legal basis for unionization efforts by college athletes. The Dartmouth men’s basketball players voted to unionize in 2021, but abandoned the effort in December amid concerns about an adverse decision by the NLRB under the incoming Trump administration. The NLRB complaint against the NCAA, Pac-12, and USC also carried broad implications for college sports, as it sought to establish that every college athlete has a private employer (the NCAA or a conference) and could potentially open the door to unionization efforts at public schools.
Title IX and Name, Image, and Likeness (NIL)
Cowen’s memorandum follows the recent rescission of guidance issued by the Biden administration’s Education Department, which stated that compensation paid to college athletes for NIL use was subject to Title IX gender-equity policies. This guidance has now been revoked by the Trump administration’s Education Department.
Implications for College Sports
The recission of the college athlete employment status memorandum is a significant setback for unionization efforts by college athletes. It remains to be seen whether the NLRB will continue to pursue the complaint against the NCAA, Pac-12, and USC. However, the rescission of the guidance on NIL compensation further complicates the legal landscape surrounding college athletics.
The NCAA and its member institutions will likely welcome the recission of the college athlete employment status memorandum, as it maintains the traditional amateur status of college athletes. However, the ongoing debate over college athlete compensation and the potential for unionization is far from over.
