On December 15, 2022, the National Labor Relations Board’s Los Angeles regional office determined that an unfair labor practice charge (ULP) alleging that student-athletes should be classified as employees has “merit.” The National College Players Association filed the ULP in February 2022 against the National Collegiate Athletic Association (“NCAA”), the Pac-12 Conference, and the University of Southern California on behalf of football and basketball players at USC.
What You Need to Know:
- The NLRB’s Los Angeles regional office is inching closer to effecting a seismic shift in college sports by seeking to convert “student-athletes” to “employee-athletes.”
- Allegations that the NCAA, conferences, and institutions are joint employers may lead to athlete unionization at private and public institutions alike.
In support of this determination, the General Counsel for the NLRB, Jennifer Abruzzo, who oversees the regional offices, issued a statement explaining that the ULP merit finding “is based on a determination that USC, the Pac-12 Conference, and the NCAA, as joint employers, have maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protections under our law.” The statement echoes GC Abruzzo’s September 2021 warning that simply using the term “student-athletes” misleads athletes into believing that they are not entitled to employee rights under the National Labor Relations Act (“NLRA”).
In simplest terms, the General Counsel’s December 15, 2022 decision is the first implementation of the NLRB GC’s September 2021 decree that student-athletes are likely statutory “employees.” If this position prevails, institutions of higher education, athletic conferences, and/or the NCAA would be legally obligated to engage in collective bargaining with unions representing college athletes over wages, hours, and other terms and conditions of employment.
The NLRB General Counsel’s decision to take the case forward is the first step in what could be a lengthy legal battle. As a next step, the General Counsel must convince an administrative law judge that athletes are employees. If she is successful, the NCAA, Pac-12, and USC can appeal the ALJ’s decision to the five-member Board of the NLRB. The Board’s decision, in turn, can be appealed to the Ninth Circuit Court of Appeals or the D.C. Circuit Court of Appeals and, ultimately and potentially, the U.S. Supreme Court.
While the NLRA applies only to private employers, the General Counsel’s position that the NCAA, the Pac-12, and the institution are joint employers, if upheld, could potentially encompass athletes at NCAA-affiliated public institutions as well.
Our labor and employment and higher education attorneys will continue to track the NLRB’s progress toward this potential seismic shift in the world of college athletics. If you have any questions about labor organizing at institutions of higher education, please reach out to the author or your regular Saul Ewing LLP attorney.
