Labor Memo Amounts to New Stance From Feds Against the N.C.A.A.

In the memo, Abruzzo noted recent “significant developments in the law, NCAA regulations, and the societal landscape” demonstrated that the traditional idea of amateur sports had changed irrevocably.

She cited the Supreme Court’s unanimous ruling, in N.C.A.A. v Alston, which asserted that college sports was a profitable enterprise. She mentioned the N.C.A.A.’s decision, in the face of mounting pressure being exerted by state legislatures, allowing athletes to make money from their fame under new name, image and likeness laws. And she noted how athletes had been “engaging in collective action at unprecedented levels,” like demanding social justice after George Floyd’s murder and insisting that their health and safety be factored into any decisions related to playing during the coronavirus pandemic.

The confluence of these events also comes at a far different time, Abruzzo noted, than the last time the N.L.R.B. weighed in on college athletes in a high-profile fashion.

In 2015, the five-member board — overriding the decision of a regional director — ruled against football players at Northwestern, a private school, who were seeking to unionize. The board did not rule directly on the core question of whether the players were university employees, but rather said that the petition’s impact on sports would not have promoted “stability in labor relations.”

“They punted,” said Wilma Liebman, the chair of the N.L.R.B. from 2009 to 2011. “But win, lose or draw, the athletes really won because there was so much attention paid to them, and so much sympathy.”

Under the new guidance, Liebman and others cautioned, it could take months, or even years, for the right case to bubble up through the N.L.R.B. system.

“We are a long way from college athletes being employees,” said Gabriel Feldman, a law professor who is the director of the Tulane Sports Law Program. “But we are certainly at a point where we have indications from many external authorities who believe that the status quo with respect to college athletic rights is not sustainable.”