On February 8, 2022, the National College Players Association (NCPA), an advocacy group for college athletes, filed unfair labor practice charges before the National Labor Relations Board (NLRB) against the National Collegiate Athletic Association (NCAA) and other heavyweights in collegiate athletics. The NCPA's charges allege that the NCAA and others misclassify student athletes as amateurs and ask the NLRB to rule that student athletes are employees under the National Labor Relations Act (NLRA).

Just last fall, the General Counsel of the NLRB started looking for cases through which to advance the General Counsel's position that student athletes at private (and perhaps public) educational institutions should be considered employees under the NLRA.¹ The NCPA's charges could provide such a case.

Background

The NLRA confers its protections-including the rights to unionize, demand bargaining, and engage in economic pressure such as walk outs-upon "any employee,"² which agency rules define to mean any person "who performs services for another" and is "subject to the other's control or right of control."³ The NCAA has long treated student athletes as amateurs beyond the purview of these protections. For its part, the NLRB declined to address the issue of whether college athletes are employees under the NLRA in a 2015 case involving Northwestern University, reasoning that exercising jurisdiction over student athletes at private educational institutions would not promote the...

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