For decades, college athletes have been prohibited from unionizing or making money as professionals, raising concerns from athletes such as LeBron James and politicians such as Senators Chris Murphy and Bernie Sanders that these policies can limit, or even take advantage of, student-athletes.
Murphy and Sanders introduced a bill earlier this year that would allow college athletes to form unions within athletic conferences.
On Wednesday, Jennifer Abruzzo, general counsel of the National Labor Relations Board released a memo arguing that certain college athletes can be considered employees under the National Labor Relations Act and therefore, are workers eligible to unionize.
"Under common law, an employee includes a person 'who perform[s] services for another and [is] subject to the other's control or right of control,'" she writes.
The memo specifically addresses a case in which Northwestern University football players sought union representation; their petition was dismissed by the NLRB in 2015. Abruzzo mentions the decision and argues that "certain Players at Academic Institutions are employees under the Act and are entitled to be protected from retaliation when exercising their Section 7 rights."
Section 7 of the NLRA guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."
Abruzzo's memo also reveals that she will pursue action against schools that "misclassify" players as "student-athletes," on the grounds that it creates a "chilling effect" that discourages them from asserting their rights.
The memo also acknowledges how college athletes have "been engaging in collective action at unprecedented levels" to support the Black Lives Matter movement and to demand safe playing conditions during the pandemic. Unionizing could allow athletes to organize around priorities such as these, in addition to pay.
The news follows years of organizing among college athletes as well as a 2021 policy change from the NCAA that now allows student athletes from all three divisions to monetize their name, image and likeness, often referred to as NIL.
It also follows growing public support for increased rights for college athletes.
A 2019 survey of 2,501 college students by polling platform College Pulse found that 53% of students favor or strongly favor allowing universities to pay college athletes a salary.
A 2021 Morning Consult survey found that 62% of adults believe athletes should be allowed to cash in on the use of their identity in licensed products like jerseys or video games and 61% support allowing student-athletes to make money through endorsements.
ESPN estimates that top-tier NCAA athletes could earn between $500,000 and $1 million per year in sponsorships and the National Bureau of Economic Research estimates that if top college football and basketball stars were compensated similarly to professional players, whose collective bargaining agreements with professional leagues assure them a roughly 50% share of league revenue, many would receive millions.
For less-famous athletes, potential payouts would likely be less substantial. In Jan., CNBC Make It interviewed Chloe V. Mitchell, a National Association of Intercollegiate Athletics (NAIA) volleyball player at Aquinas College in Grand Rapids, Michigan who is believed to be among the first college athletes to make money from her likeness.
She says that she has been able to bring in smaller sums closer to $3,000 but said the funds have helped significantly.
"I believe that each athlete should be able to monetize their brand," said Mitchell. "It's American."
Over the past several decades, American union membership has steadily declined. Bureau of Labor Statistics data indicates that in 1983, 20.1% of employed Americans were members of a union. By 2019, that share had decreased by roughly half to 10.3%.
But President Biden has promised to be "the most pro-union president" and his appointee, Abruzzo, seems to have opened the door for college athletes to unionize as well.