The National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo to NLRB regional offices on Wednesday stating her position that student-athletes at private universities are employees under the National Labor Relations Act (NLRA). The NLRA protects covered employees’ rights to form unions, collectively bargain, and engage in concerted activity for mutual aid or protection.

According to the memo, misclassification of student-athletes as non-employees has a chilling effect on their ability to bargain and engage in concerted activity. This effect is an independent violation of Section 8(a)(1) of the NLRA, which provides that interference with employees’ labor rights is an unfair labor practice. Under appropriate circumstances, the NCAA or individual athletic conferences may be held jointly liable.

The NLRB memo limits its findings to student-athletes at private universities because it does not have jurisdiction over public employers under the NLRA. However, a finding of joint liability for the NCAA or individual athletic conferences would justify NLRB jurisdiction over student-athlete labor disputes at public colleges and universities.

This memo follows the US Supreme Court’s unanimous decision in NCAA v. Alston, which rejected the NCAA’s antitrust defense of amateurism in college athletics, supporting past NLRB decisions regarding student-athletes employee status and bolstering the case for future findings of the same.

Abruzzo’s memo was circulated to each of the NLRB’s regional offices. NLRB regional offices investigate cases of unfair labor practices, administer union elections, and are the starting point for most labor disputes. This guidance will determine the outcome of regional offices handling student-athlete labor disputes going forward.