Jennifer Abruzzo, the new general counsel of the National Labor Relations Board, made it a priority to issue a memo declaring certain college athletes “employees” for several reasons, including recent legal developments involving the NCAA.
Abruzzo, who took over the job in July, issued the memo in September and it received a lot of press, as it could be the first step for college football players, and potentially other team sport athletes, toward unionizing.
“The interest in this memo is wonderful because we are reaching audiences we might not normally reach — people who are not necessarily aware of our agency and the rights that we protect,” Abruzzo said in an interview with Sports Business Journal last week.
Abruzzo
Abruzzo worked at the NLRB, the agency charged with enforcing the National Labor Relations Act, for 23 years before leaving in 2017 and was involved, as deputy general counsel, in issuing the first memo declaring certain college athletes “employees” in January 2017. But that memo was rescinded by General Counsel Peter Robb, who was appointed by President Donald Trump, in December 2017. President Joe Biden fired Robb on his first day in office in January 2021 and appointed Abruzzo to the position.
Abruzzo noted that a lot has changed for college athletes in the four years since the memo was first issued, including the NCAA lifting its rules prohibiting players from cashing in on their name, image and likeness, as well as student athletes winning a 9-0 victory over the NCAA in the Supreme Court in June regarding educationally linked benefits.
“After my Senate confirmation and my arrival back at the agency in July, I wanted to reinstate and update that memo we issued in 2017,” she said. That 2017 memo, she said, was bolstered by recent events, “including the Supreme Court decision in NCAA v. Alston, which basically said that college sports is a profit-making enterprise and rejected the notion for amateurism.”
The general counsel will issue memos from time to time to inform interested parties of the general counsel’s position on labor issues. “This memo was meant to educate the players and institutions and unions and advocates and the public at large, frankly, about the rights and obligations under our statute,” Abruzzo said.
The designation of “employee” is important, because only employees can form unions. The NLRB punted on the issue in 2015 in the Northwestern football case, but then in 2017 issued the memo finding that they are employees.
In the memo issued last month, Abruzzo wrote that scholarship football players at Northwestern “and similarly situated” players at academic institutions are employees and therefore protected under the NLRA “when they act concertedly to speak out about their terms and conditions of employment, or to self-organize, regardless of whether the Board ultimately certifies a bargaining unit.”
Abruzzo also takes issue in the memo with the term “student athlete,” saying that it can create “a chilling effect” on players who may want to exercise their rights under the NLRA. She indicated in the memo that she could pursue a charge of “misclassification” against an employer of a player in certain circumstances.
“I would like to say whether someone is considered an employee or not is not determined by the employers’ label of that,” Abruzzo told SBJ. “It’s based on the law, and under the common law … I firmly believe that certain players at certain institutions are statutory employees and as a statutory employee, they have the full protection of the NLRA.”
The SEC and the NCAA both issued statements indicating disagreements with Abruzzo’s memo. The NCAA said in its statement, “We firmly believe that college athletes are students who compete against other students, not employees who compete against other employees.”
Right now, the memo is just a memo and the NCAA, conferences and schools can’t make a legal challenge to it until there is a controversy, such as an unfair labor practices charge or a petition to form a union.
The NLRB has authority over private institutions, not public institutions. Abruzzo also said in the interview that she considers conferences to be private institutions.
Abruzzo said there were no external factors that prompted her memo. “I have not yet seen a case — either an unfair labor practice charge or a petition,” Abruzzo said. “I have not heard about one regarding players. I certainly think that we will see one soon.”
Asked why she expects one soon, Abruzzo said, “I think as more people learn about the rights that they have and the protections that we afford, we may see more cases percolating.”
Kardosh
■ CAA PROMOTES KARDOSH: Jen (Entin) Kardosh has been promoted to head of hockey operations, marketing and client management at CAA Sports.
Kardosh has worked at CAA Hockey since 2011, first as assistant to CAA Hockey Co-Head Pat Brisson. She has steadily worked her way up, promoted to CAA’s agent trainee program in 2014 and to executive in 2015, where she led off-the-ice initiatives for NHL player clients including stars Sidney Crosby, John Tavares, Patrick Kane, Jonathan Toews and others.
In 2020, Kardosh was promoted to head of marketing and client management. In her new role, adding operations to her title, Kardosh will oversee day-to-day operations of CAA Hockey, which is made up of more than two dozen employees across the U.S., Canada, the Czech Republic, Finland and Sweden.
Wall
■ FAMILIE ADDS NEW NBA AGENT: The Familie has hired Jonathan Wall, who most recently worked at prominent national law firm Paul, Weiss Rifkind, Wharton & Garrison, as an NBA agent.
Wall is a graduate of Harvard Law School and is a National Black Lawyers Top 40 Under 40 winner. In 2020, he became certified by the National Basketball Players Association to represent NBA players in contract negotiations with clubs.
Liz Mullen can be reached at lmullen@sportsbusinessjournal.com. Follow her on Twitter @SBJLizMullen.
