NLRB ruling on college athletes may foul foreign players

Nothing produces untended consequences like government action, and no one can say that the National Labor Relation Board’s (NLRB) isn’t producing its fare share. The latest is the board’s attempt to expand collective bargaining rights to collegiate athletes, a move that may result in foreign students becoming ineligible for visas.

An NLRB regional director extend collective bargaining rights to college athletes at Dartmouth earlier this year, declaring that the students were in fact employees of the institution. That presents a potentially serious problem for foreign students. The standard F-1 visa limits holders from accepting any type of long-term employment.

“If you’re taking students and reclassifying them as employees, then in the simplest terms, those athletes are no longer considered to be students and therefore are ineligible for the F-1,” Robert Seiger, an immigration attorney and partner at Fox Rothschild LLP, told Bloomberg News. There are an estimated 20,000 such athletes at US colleges and universities.

It is a potentially quite treacherous situation for the students, since any violation of a visa can impact their attempts to gets visas extended or become naturalized citizens.

Thus far, the NLRB’s action has not resulted in any actual deportations. The regional director’s decision only applies to Dartmouth’s men’s basketball team and the college is appealing it to the full board. But should the board uphold its director’s ruling – which seems likely – it is expected to be a standard for college athletic programs broadly.

Unionizing college students is something the NLRB has been pushing for the last several years. “The freedom to engage in far-reaching and lucrative business enterprises makes players at academic institutions much more similar to professional athletes who are employed by a team to play a sport,” NLRB General Counsel Jennifer Abruzzo wrote in a 2021 memo.

F-1 visa holders may under certain circumstances work on-campus for up to 20 hours a week, a limit that practices and games could easily exceed. It is not clear how away games would count under this scenario.

It’s not clear if foreign students would have the option of not belonging to a potential union if their state has a right to work law that allows them to opt out of membership. Even if so, it is unlikely that that would nullify their being classified as employees of the college or universities since right to work laws assume the worker is an employee regardless of their status with the union.

The NLRB’s zeal to expand its reach can backfire on the very workers it intends to protect. I recently wrote about recent decisions expanding protections under the National Labor Relations Act (NLRA) may result in workplaces that fail the Equal Employment Opportunity Commission’s (EEOC) rules for a safe workplace. The NLRB has argued that even hostile rhetoric is protected speech during organizing efforts. In an amicus brief in an NLRB case, the EEOC warned employers not to be too lenient in this area.