May 19, 2023
As McGuireWoods reported in December 2022, the National Labor Relations Board (NLRB) regional office in Los Angeles found an unfair labor practice charge filed by the National College Players against the NCAA, Pac-12 Conference and a private university appeared to have “merit.” McGuireWoods reported the next step would be for the NLRB to issue a complaint and notice of hearing. On May 18, 2023, the NLRB issued both.
The complaint alleges that the university, the Pac-12 and the NCAA misclassified the university’s scholarship, non-scholarship and walk-on players on the football and men’s and women’s basketball teams as non-employee student-athletes, as opposed to employees, to intentionally deprive the players of their rights under the National Labor Relations Act and to discourage student-athletes from engaging in protected concerted activities such as forming a union or striking.
Notably, the complaint alleges that the NCAA, Pac-12 and university are joint employers of the players, and that they exercised control over the labor relations policies of the players. The complaint cites the university’s Athletics Student-Athlete Handbook and its Social Media Policy & Guidelines for Student-Athletes in support of this position, citing policies on student-athlete media interviews and social media usage for student-athletes.
The complaint seeks an order requiring the NCAA, Pac-12 and university to: 1) cease and desist from misclassifying the players as non-employee “student-athletes,” and 2) reclassify the players as employees rather than as “student-athletes” in their files, including, but not limited to, their handbooks and rules, and notify all current players that they have done so.
The NCAA, Pac-12 and university are required to answer the complaint on or before June 1, 2023, unless an extension is requested by May 25. A hearing before an administrative law judge (ALJ) is scheduled for Nov. 7, 2023, in Los Angeles. The ALJ’s decision can be appealed to the full NLRB, which accepts briefs from the parties and then issues a decision. The losing party can then appeal the matter to the federal circuit court of appeals with jurisdiction and ultimately seek review by the U.S. Supreme Court. The federal circuit court of appeals with jurisdiction in this matter is the 9th U.S. Circuit Court of Appeals, which has issued several decisions that are favorable to student-athletes, including in the Alston case. However, previously in Dawson v. NCAA, the 9th Circuit held that student-athletes were not employees of the NCAA or their athletic conference, as the NCAA is more akin to a regulator than an employer.
McGuireWoods is closely tracking developments in the case and other complicated issues in college athletics. Please contact the authors of this article with questions.