An administrative law judge will begin proceedings Tuesday in a National Labor Relations Board (NLRB) complaint against the NCAA, the Pac-12 Conference and the University of Southern California, alleging they illegally misclassified college athletes as “student-athletes” rather than employees. .
THE The case specifically revolves around football, men’s basketball and women’s basketball athletes at USC. However, this could have much broader implications in college sports. And that’s one of the reasons the NCAA and its member schools and conferences have been vigorously lobby Congress for legislation that would include a provision preventing athletes from becoming school employees.
Here’s a look at where it came from and where it could go.
What are the origins of the affair?
In September 2021, the Biden administration’s appointee as NLRB general counsel, Jennifer Abruzzo issued a memorandum saying she considers college athletes employees. from their schools under the National Labor Relations Act (NLRA).
At the time, Michael LeRoy, a labor law professor at the University of Illinois, told USA TODAY Sports that the Abruzzo memo amounted to “calling on players to petition to form a union at an institution private. ‘”
That’s exactly what the National College Players Association, a group that advocates for college athletes, did in February 2022. But there ultimately was more.
The Joint Employer Theory and Why It Matters
When the NLRB’s Los Angeles office filed its complaint in May 2023, as well as when it amended that complaint in September, it alleged that the NCAA, Pac-12 and USC had been joint employers of the athletes because the NCAA and Pac-12 had control over athletes’ working conditions and “administered a common labor policy” with USC regarding those conditions.
If this theory prevails, it could have implications for college sports as a whole. The NLRA applies to private employers. State laws govern public employees, and many states have laws that do not allow public employees to unionize.
USC is a private school. The NCAA and Pac-12 are private, nonprofit organizations. If the NCAA and a major college athletic conference turn out to be employers of athletes, then “every college athlete has a private employer,” Gabe Feldman, director of Tulane’s sports law program and vice president of Tulane University for NCAA compliance. .
As such, it would open the door to the possibility of unionization and collective bargaining for public school athletes, Feldman said.
A efforts to unionize Northwestern University football players ended in August 2015, when the full NLRB declared that the board had no jurisdiction over public schools, attacking Northwest’s efforts would run counter to the NLRA’s charge that the board creates environments of stable and predictable work in various industries. Under a joint employer theory, this problem might disappear.
At the NLRB LA office
The complaint cited excerpts from the USC Athletics Department’s Student-Athlete Handbook and its Social Media Policy and Guidelines for Student-Athletes, which establish a variety of regulations that athletes must follow.
It also alleged that USC, the Pac-12 and the NCAA “intentionally misclassified (p)layers as non-employee student-athletes in order to deprive them” of their right under the NLRA to organize or to bargain collectively and “discourage (them) from engaging in protected concerted activities.”
On the side of USC, the Pac-12 and the NCAA
Each of the three entities filed an argument in favor of rejection, separately or collectively offering a set of arguments including:
▶ The contents of the USC Handbook do not constitute a set of “rules” that violate the NLRA. These are “mere general recommendations or warnings” and “do not rise to the level of work rules and their maintenance does not constitute an unfair labor practice”.
▶ Under the First Amendment, they cannot be forced to use any term other than “student-athletes” to describe the students who play for the teams in question.
▶ The Pac-12 is not subject to the NLRA because 10 of its 12 members are public schools. This makes the conference a “political subdivision,” in the context of the NLRA, because the conference’s board of directors includes school presidents and chancellors who answer to public authorities in their states.
What’s happening now
What was initially expected to be a multi-week trial had to be rearranged due to a conflict in the judge’s schedule. Instead, there will be up to three days of pretrials this week, followed by testimony Dec. 18-20, Jan. 22-Feb. 2, and, if necessary, Feb. 26-29.
An administrative law judge’s decision may be appealed to the full National Labor Relations Board, and a decision of the board may be appealed to a federal court.
