RELATED ALERT: Student-Athlete Name, Image and Likeness Framework Continues to Evolve (April 26, 2023)
As McGuireWoods reported on Feb. 8, 2022, 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 (USC), 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. The ULP against University of California, Los Angeles (a public institution that is not subject to the National Labor Relations Act), was previously dropped.
On Dec. 15, 2022, the NLRB regional office in Los Angeles found the ULP appears to have “merit,” and it will now issue a complaint and notice of hearing if the matter does not settle. NLRB General Counsel Jennifer Abruzzo issued a statement that the decision was based on a determination that the private university, the Pac-12 and the NCAA collectively 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.” In other words, the regional office concluded that the school is a joint employer with the conference and NCAA, and that the student athletes should be afforded the protections of the NLRA, including the right to form a union, protest working conditions and strike.
This finding ties back to Abruzzo’s Sept. 29, 2021, 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 included 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.”
If a settlement is not reached, the matter will go before an administrative law judge (ALJ) for hearing. The ALJ’s decision can 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 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 U.S. Court of Appeals for the Ninth Circuit, which has issued several decisions that are favorable to student athletes, including in the Alston case. However, previously in Dawson v. NCAA, the Ninth Circuit held student athletes were not employees of the NCAA or their athletic conference as the NCAA is more akin to a regulator than an employer.
Moreover, 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 solely by virtue of their participation in interscholastic athletics. That case is set for oral argument on Jan. 18, 2023.
The NLRB’s decision is not law, will not have an immediate impact on the institution at issue, and is not binding on any other institution. However, the decision is significant, and private institutions with athletics programs — particularly Division I football and basketball programs — should track this closely. It is likely additional ULPs will be filed against institutions similar to USC. Please reach out to the authors of this article with questions.