A pending case before the National Labor Relations Board over whether college athletes should be considered employees under federal labor law could potentially send shockwaves through higher education.
Hearings before an NLRB administrative law judge are scheduled to begin Nov. 7 on unfair labor practice charges against the National Collegiate Athletic Association, the University of Southern California and the Pac-12 Conference.
The matter, that the board of directors refused to dismissquestions whether the three entities jointly employ student football and basketball players and whether they have been illegally misclassified as “non-employee student-athletes.”
A decision to classify student-athletes as employees under the National Labor Relations Act would open a “Pandora’s box” of other legal questions, particularly for smaller institutions that might not be able to answer to the financial demands of employing athletes, said Irwin Kishnerpartner and co-chair of the sports law group at Herrick Feinstein LLP.
“They could choose to only fund those that are profitable, is that good for students? Would this harm the overall educational experience for many? Maybe,” he said. “Sometimes you have to be careful what you wish for, because you might get it and it might have unintended consequences.”
Litigation on several fronts
USC’s case is one of several efforts by labor rights advocates to extend full employee rights to student-athletes.
NLRB General Counsel Jennifer Abruzzo filed the USC complaint in Mayseveral months after delivery A memo asserting his belief that players should be considered employees and have the right to organize collectively.
In September, the men’s basketball players of Dartmouth College filed a petition to unionize with the Service Employees International Union, becoming the first team to do so since 2014.
Stocks follow unanimous 2021 consensus United States Supreme Court decision that the NCAA violated federal antitrust laws by limiting the education-related benefits that schools can offer to athletes. Shortly after the ruling, the NCAA changed its rules to allow students to profit from the use of their name, image and likeness.
In other pending casebefore the United States Court of Appeals for the Third Circuit, college athletes claim that the NCAA violated the Fair Labor Standards Act by refusing to pay them for their services.
Roberto Corradaprofessor of employment law at the University of Denver’s Sturm College of Law, says it’s inevitable that student-athletes will gain employee status.
“When you look at these athletes and the way they are vetted by the university and the NCAA, it is clear that they meet the criteria of an employee,” he said. “So the writing is on the wall, it’s just a matter of time.”
But an employee classification could open colleges and universities to lawsuits over wages, hours and discrimination from players, as well as legal questions under Title IX, Corrada said.
Title IX of the Education Amendments of 1972 requires educational institutions to provide equal educational opportunity to all students.
“Any woman who wants to attend a university to play a sport gets an athletic scholarship, just like a man. So what happens if men’s basketball teams are considered employees and start receiving salaries? » said Corrada. “These are questions that we cannot answer at the moment, but they will have to be resolved.”
Boost for unionization
Being classified as an employee will likely lead many student-athletes to seek to unionize, said Jenny Leepartner representing higher education establishments at Franczek PC.
Organize on college campuses has already reached its climax this year, driven by major victories for unions among unions. graduate students and medical residents.
“I’m not surprised, given the general landscape of organizing across the country over the last several years, that these student-athletes see these signs and believe it’s time for them to push,” Lee said . “Having that legal employee designation would make things that much easier. »
Increased unionization, however, raises the question of who should negotiate with athletes and how to define the bargaining unit.
USC students say they are employed by the university, the conference and the NCAA. USC is expected to move from the Pac-12 to the Big Ten Conference next year.
Designating the conference and the NCAA as joint employers would give the NLRB jurisdiction over public institutions, thereby circumventing the problem used to reject a Attempt to unionize in 2014The Northwestern University football team. The board of trustees said at the time that it was unwise to get involved in the matter when most college football teams were owned by public schools and therefore outside its authority.
The USC case also comes as the agency prepares to release its new co-employer rule, which should add factors that could trigger a joint-employer finding beyond just one company’s direct and immediate control over another company’s employees. The agency proposed considering indirect, unexercised control, which could provide NLRB attorneys with a way to classify the NCAA as a joint employer.
Corrada suggested that each of the Power Five college football and basketball conferences could constitute a bargaining unit if the NCAA is considered a joint employer. The Power Five consists of the Atlantic Coast Conference, Big Ten Conference, Big 12 Conference, Pac-12 Conference and Southeastern Conference.
According to a USA Today report from May, the Power Five conferences generated a total of $3.3 billion in 2022.
“To me, that’s the real crime,” said Corrada, who has been studying the issue since 2019. “These kids are bringing millions of dollars to these universities and they’re not getting paid. It’s the universities that benefit from it, but the athletes don’t see a cent.”
The NCAA did not respond to requests for comment.
NCAA spokesman Tim Buckley said in May that USC’s complaint would not help college athletes succeed because it would replace a system that allows them to earn “real money” while by getting a college degree through a system that would allow them to be “fired after a few bad games in the middle of the season.”
Dartmouth argued to the NLRB that its student-athletes should not be counted as employees because they do not receive scholarships or other forms of compensation. Additionally, a college spokesperson said the program does not generate revenue for the school.
“For these and other reasons, we strongly believe that unionization is not appropriate in this case,” Dartmouth spokeswoman Jana Barnello said in an emailed statement. “Dartmouth has a long and proud history of productive relationships with unions on campus, always bargaining in good faith when appropriate, and respects the right of workers to unionize.
Increased consolidation
Matt Cowanpartner at management firm O’Melveny & Myers, said considering athletes as employees would result in a “fundamental change in the landscape of college sports.”
“College athletes can now profit from their name, image and likeness and also receive scholarships, but paying them is likely a bridge too far for some universities,” Cowan said in an emailed statement.
NCAA “super conferences” with very expensive programs could likely bear the brunt of paying athletes’ salaries and benefits, but smaller schools could struggle, said Michael Elkinslawyer specializing in employment law and founder of MLE Law.
“If athletes get employment status, it’s really going to accelerate this model of conference consolidation and we could see some of the smaller schools disappear,” he said.
