It was opined by one appointed the NLRB General Counsel appointed by Obama, Richard Griffith. His assistant at the time was Jennifer Abruzzo. Trump appointee, Peter Robb, rescinded the opinion 11 months later. It’s normal/common for the new general counsel to rescind former opinions. Then, Biden fired Peter Robb (not normal/common practice) and appointed Jennifer Abruzzo who reinstated the opinion.

A administrative law judge declared that, under the National Labor Relations Act, student athletes at Dartmouth (men’s basketball team) are employees. The matter has been appealed to the NLRB. The current Board will agree, but the Board may change depending on who wins the next presidential election.

The matter will likely be appealed to the Federal Circuit Court of Appeals, regardless of the NLRB’s decision, and then possibly to the US Supreme Court. It will take years to be decided.

In the meantime congress has been asked by the NCAA to pass a law that college athletes are not employees. No action there yet.

For now, it is likely that the NLRB would find college athletes employees under the NLRA. However, this would only apply to private schools not owned and operated by a church. It would not apply to state schools or church owned and operated schools.

Also, the NLRB is very fond of finding joint employers whenever they can. So they would likely find that the NCAA was a joint employer with the school. They could go as far as finding that, depending on their relationship with the school, some boosters could be joint employers. If you are a joint employer then you can be liable along with the employer for the employer’s alleged violations of the NLRA.

There are many other implications that come along with being an employer/employee under the NLRA, but predominantly it means the atheletes get to form a union to negotiate with the school over the terms and conditions of their “employment”. E.g., when they can be disciplined, what their job duties are, wages, and benefits. It will be a mess if ultimately the decision is they are employees.