Fordham Law Review Online

Three Strikes, You’re Out!: The NCAA’s Struggle to Keep the Labor Law Lead Over College Athletes

May 1, 2023

In September 2021, Jennifer Abruzzo, the General Counsel of the National Labor Relations Board (NLRB), released GC 21 granting labor law protections to players at academic institutions (PAIs) under the National Labor Relations Act (NLRA). This decision sent a shock wave throughout the legal community and began the latest saga in the long-term labor battle between the National Collegiate Athletic Association (NCAA) and PAIs. A unique aspect of Abruzzo’s memorandum is the reliance on Alston v. NCAA, an antitrust case heard by the U.S. Supreme Court in 2021. In his concurrence, Justice Brett Kavanagh suggested antitrust issues between PAIs and the NCAA could be resolved through collective bargaining. The notion that PAIs could be considered employees under the NLRA raised questions as to their employee status under other federal labor and employment statutes, most notably the Fair Labor Standards Act.