By: Ayana Anderson
Throughout 2021, the United States witnessed a radical expansion in the rights of collegiate athletes. The National Collegiate Athletic Association (“NCAA”) and their respective educational institutions determine the rights of collegiate athletes. Collegiate athletes were limited in their capacity to negotiate compensation and restricted from using their own names and likenesses for outside endorsements. Notably, their contracts define the relationship between athletes, their college or university, and the NCAA. Much of that changed this past June, which marked a substantial victory for collegiate athletes’ rights. In National Collegiate Athletic Association v. Alston, the Supreme Court unanimously held that the NCAA cannot cap collegiate athletes’ compensation at the school’s cost of attendance. Universities and colleges can now offer competitive benefits packages to their collegiate athletes to build their rosters, much like professional teams. Further, the NCAA adopted an interim policy permitting athletes in all three divisions, for the first time, to be compensated for name, image, and likeness opportunities.
These recent changes advanced the fair economic treatment of collegiate athletes to new heights. Riding on this newfound momentum, the National Labor Relations Board (“NLRB”) released a memorandum affirming that certain collegiate athletes are considered employees and afforded the rights due to employees. The NLRB is an independent federal agency that protects employees’ rights through representing unions facilitating settlements, remedying unfair employers’ practices, and creating the employment regulatory structure. While the memorandum is not law, it directly contradicts historical precedent and the mission of the NCAA.
Before Alston, precedent supported the NCAA’s efforts to exert economic control over member institutions and collegiate athletes. The NCAA maintains that collegiate athletes are not employees, and their rights are limited to those enumerated in their contracts. In Waldrep v. Texas Employers Insurance Association, the Texas court rejected a Texas Christian University (“TCU”) football player’s petition for worker’s compensation after being paralyzed below the neck during a football game. The court referenced the NCAA rules, which stipulated that collegiate athletes were ineligible to participate in sports if they were receiving a salary. The court clarified that Waldrep was permitted to participate in TCU football as a student, not as an employee.
Additionally, in Northwestern University and College Athletes Association, the NLRB denied Northwestern University students’ petition to unionize because NLRB did not have jurisdiction over collegiate athletes; the NCAA regulates them. Further, in Berger v. NCAA, the court denied a University of Pennsylvania track student’s plea for minimum wage under the Fair Labor Standards Act. At the moment, the NCAA and member institutions regulate the rights of collegiate athletes.
On September 29, 2021, the NLRB released a memorandum asserting that certain collegiate athletes are to be considered employees. The memorandum states, “the definition of ‘employee’ in Section 2 (3) of the NLRA is broadly defined to include ‘any employee,’ subject to only a few enumerated exceptions. Those exceptions do not include university employees, football players, or students.” The NLRB opposes its position taken previously in Northwestern University in favor of its position in Boston Medical Center and Columbia University. In Boston Medical Center, the NLRB affirmed that medical residents, medical fellows, and medical students are not exempt from protection as employees simply because they are students. In Columbia University, the NLRB held that the breadth of the definition of an employee does not exclude students, specifying that the fundamental premise of the act is designed to cover an economic relationship in whatever form. Therefore, despite students not being named in the statute, they may have statutory rights as employees, and the university holds certain duties and obligations as their employer.
In essence, the NLRB memorandum analogizes student athletes to medical student residents and research assistants. While revisiting the facts in Northwestern University, the NLRB found that the scholarship football players met the statutory definition of employees and the common law test because they: (1) generate tens of millions of dollars in profit for the university; receive significant compensation ($76,000/year); (2) are bound by the NCAA’s players’ terms and conditions including a number of practice and competition hours, minimum grade point average, restrictions on gifts, and other compliance programs and; (3) are supervised by the university which dictates the manner and means the players’ work on the field and their daily lives. While these factors are not exhaustive, they sufficiently demonstrate an employee-employer relationship. The NLRB functionally overturned its own administrative precedent with the memorandum.
With employment rights, student athletes would be afforded worker’s compensation, health benefits, rights associated with the Fair Standard Worker’s Act, and have the right to unionize. While the NLRB decided they will treat certain collegiate athletes as employees, neither court precedent nor the NCAA policies currently agree.Following the release of the memorandum, the NCAA responded: “[w]ith college sports embedded within the higher education experience, we firmly believe that college athletes are students who compete against other students, not employees who compete against other employees. . . those who participate in college sports are students. Both academics and athletics are part of a total educational experience.” However, the trajectory of collegiate athletes’ rights are leaning towards considering certain collegiate athletes as employees. In this case, collegiate athletes will then be afforded all the right dues and will be able to ensure fair treatment by holding colleges and universities to standards required by employers.
 See generally NCAA, 2021-22 Division I MANUAL (2021), https://web3.ncaa.org/lsdbi/reports/getReport/90008 (providing the constitution, operating bylaws, and administrative authority of the NCAA and member institutions).
 See id. at 3, 74-75 (indicating restrictions that apply to NCAA athletes).
 See N. Jeremi Duru, Sports Law and Regulation: Cases, Materials, and Problems 109-16 (Wolters Kluwer, 4th ed. 2016) (students are bound by the national letter of intent, statement of financial assistance, and NCAA rules).
 See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021) (affirming the Ninth Circuit’s decision to allow students to compare compensations benefits and give them the freedom to choose which package is consistent with the value they bring to the team).
 See id. (supporting the finding that the NCAA uses its monopsony power to place horizontal compensation limits produce anticompetitive effects in recruiting).
 See Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image and Likeness Policy, NCAA (June 30, 2021), https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interim-name-image-and-likeness-policy (stating that collegiate athletes can “engage in N[ame] I[mage and] L[ikeness] activities that are consistent with the law of the state where the school is located [, ]. . . without violating NCAA rules [, and] consistent with state law or school and conference requirements to their school”).
 See Memorandum from Jennifer A. Abruzzo, Statutory Rights of Players as Academic Institutions Under the National Labor Relations Act, Nat’l Lab. Rel. Bd. 1 (Sept. 29, 2021) https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status-of (stating “I will allege that misclassifying employees as mere “student-athletes” and leading them to believe that they do not have protections is a violation of Section 8(a)(1) of the Act”).
 See What We Do, Nat’l Lab. Rel. Bd., https://www.nlrb.gov/about-nlrb/what-we-do (last visited Nov. 29, 2021) (describing the National Labor Relations Board’s purpose).
 See infra notes 10-16 (explaining that court precedent has historically protected the NCAA’s authority over collegiate athletes and member institutions).
 See, e.g., Alex Kirshner, The NCAA wants to Make Up its Own Subpoena Power, Banner Soc. (Aug. 14, 2019, 10:24 AM) https://www.bannersociety.com/2019/8/14/20706902/ncaa-enforcement-policy (describing the “sanity code” which regulate player compensation and the control over games broadcasting); Nat’l Collegiate Athletic Ass’n v. Bd. of Regents, 468 U.S. 85, 118-20 (1984) (permitting the NCAA to control the broadcasting on college football games despite antitrust issues).
 NCAA Statement on NLRB General Counsel Memo, NCAA (Sept. 29, 2021) https://www.ncaa.org/about/resources/media-center/news/ncaa-statement-on-nlrb-general-counsel-memo (comparing collegiate athletes to non-athlete students).
 21 S.W.3d 692, 701 (Tex. App. 2000) (finding that Waldrep participated in TCU football as a student, not an employee).
 See id. at 700-01 (citing to multiple provisions from the NCAA manual regarding compensation through scholarship, financial aid, and salary).
 See Nw. Univ. & Coll. Athletes Players Ass’n (CAPA), No. 13-RC-121359 1350, 1355-56 (N.L.R.B. Aug. 17, 2015) (emphasizing that the finding was very case specific and a change in future circumstances could lead to the opposite outcome).
 See 843 F.3d 285, 294 (7th Cir. 2016) (granting a motion to dismiss on the basis that as a matter of law, student athletes are not employees under the FLSA).
 See Waldrep at 700-01 (looking to the provision of the NCAA manual to determine the applicable provisions.
 See Memorandum from Jennifer A. Abruzzo, supra note 4 at 2 (announcing the new characterization of collegiate athletes).
 See id. at 2-3 (explaining the NLRB’s new position).
 Id. at 3 (underscoring the NLRB’s deviation from its prior policy).
 See 330 N.L.R.B. 152, 168 (1999) (conducting a lengthy factual analysis before determining that interns and residents are not precluded from begin categorized as employees because they are also students).
 See 364 N.L.R.B. No. 90, 1, 25 (2016) (emphasizing that there exists a common law employment relationship between graduate student assistants and the university recognized in multiple facets of employment law).
 See id. at 5-6 (finding that in this case, student assistants were afforded federal protections to bargain collectively as employees).
 See Memorandum from Jennifer A. Abruzzo, supra note 4 at 3-4.
 See id. (outlining the unique economic relationship which exists between a collegiate athlete and their educational institution).
 See id. (emphasizing what is at stake when determining whether collegiate athletes are also employees).
 See supra notes 10-17 (documenting the historical treatment of collegiate athletes indicates they are not considered employees).
 NCAA, supra note 11.
 E.g., Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166-69 (2021) (Kavanaugh, J., concurring) (writing “[b]ut those traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law”); Waldrep v. Tex. Christian Univ., 21 S.W.3d 692, 701 (Tex. App. 2000) (concluding “we note that we are aware college athletics has changed dramatically over the years since Waldrep’s injury. Our decision today is based on facts and circumstance as they existed almost twenty-six years ago. We express no opinion as to whether our decision would be the same in an analogous situation arising today”).