February 10, 2022
RELATED UPDATE: National Labor Relations Board: Student Athletes Are Employees of University, Pac-12 and NCAA December 16, 2022 (Dec. 16, 2022)
As McGuireWoods reported previously, on Feb. 3, 2022, the U.S. Court of Appeals for the Third Circuit agreed to hear an interlocutory appeal on the question of whether Division I student athletes can be employees of their schools under the Fair Labor Standards Act (FLSA) solely by virtue of their participation in interscholastic athletics.
On Feb. 8, 2022, the issue of whether student athletes can be considered employees arose in another forum when the National College Players Association filed an unfair labor practice (ULP) charge with the National Labor Relations Board (NLRB) against the NCAA, Pac-12 Conference, University of Southern California, and University of California, Los Angeles. The ULP alleges the organizations and schools violated the National Labor Relations Act (NLRA) by misclassifying the athletes as non-employees and interfering with their rights as employees.
On Sept. 29, 2021, the NLRB General Counsel issued a memorandum setting forth her position that scholarship football players and “similarly situated” players at private universities are employees under the NLRA. The memo relies on a common law definition of employee, which includes “a person ‘who perform[s] services for another and [is] subject to the other’s control or right of control,” and notes that payment is “strongly indicative of employee status.”
The memo further relies on “evidence” set forth in a prior memo from the NLRB, which concluded that scholarship football players, in particular, perform services for their institutions and the NCAA and receive compensation in the form of athletic scholarships; the NCAA controls the “terms and conditions of employment” (such as practice time, minimum GPAs and scholarship eligibility); and the institutions also control the “manner and means of the players’ work on the field and various facets of the players’ daily lives to ensure compliance with NCAA rules.”
The memo states that, as employees under the NLRA, scholarship student athletes at private institutions have the right to engage in concerted activity, including seeking to form a union, protesting their working conditions and striking or withholding their labor. The NLRA applies only to private-sector employers, and state and local government entities, such as public colleges and universities, typically are exempt from the NLRB’s jurisdiction.
The memo, however, includes a significant footnote stating that “it may be appropriate for the Board to assert jurisdiction over the NCAA and an athletic conference, and to find joint employer status with certain member institutions, even if some of the member schools are state institutions.” The memo concludes that the NLRB’s general counsel would “consider pursuing charges against an athletic conference or association even if some member schools are state institutions.” This footnote will now come into play since the student athletes brought the Feb. 8., 2022, ULP against the NCAA, a conference, a private school and a public school.
Now that a ULP has been filed, the Los Angeles Regional Office will investigate the charge and, if it’s found meritorious, issue a complaint. If a complaint is issued, one of the NLRB’s administrative law judges will hold an evidentiary hearing and issue a decision. The decision can then be appealed to the NLRB, which accepts briefs from the parties and then issues a decision. The losing party can then appeal the matter to the Ninth Circuit and ultimately can seek review by the U.S. Supreme Court. This process will likely take years to unfold.
It is possible that the National College Players Association will file additional ULPs in other regions. However, choosing schools within the Ninth Circuit seems to be deliberate, as the Ninth Circuit and federal district courts in California have issued opinions favorable to college athletes, including in NCAA v. Alston.
Given the combination of the interlocutory appeal to the Third Circuit related to the FLSA and the ULP in California related to the NLRA, along with evolving laws on name, image and likeness rights and other compensation provided to student athletes, it seems clear that challenges to the current collegiate model of athletics will continue into 2022 and beyond.
For further information on this issue, please contact one of the authors or your McGuireWoods contact.