The National Labor Relations Board general counsel, Jennifer Abruzzo, released a memo on September 29, 2021 outlining her position that college athletes are statutory employees of their academic institutions under the National Labor Relations Act. This was viewed by many commentators as a major step for college athletes receiving greater rights and protections, as well as potentially having the opportunity to unionize.

While the NLRB general counsel’s memo is compelling (and certainly grabbed headlines), it is important to recall the Board’s 2015 decision in Northwestern, as well as the scope of the National Labor Relations Act. In 2015, the NLRB’s members declined to assert jurisdiction when the Northwestern University football players attempted to unionize. There, the Board justified its position by considering its own authority and the coverage of the NLRA, which does not cover public institutions. If the Board changes its position and determines that college athletes are employees, the NLRA would only have coverage over athletes at private institutions.