Are College Athletes “Employees” Under Federal Labor Law? We Are About to Find Out…

By Chad Horton - Shawe & Rosenthal LLP

December 28, 2022

A Regional Director of the National Labor Relations Board found merit to an unfair labor practice charge alleging that the University of Southern California (USC) misclassified football and basketball players as student-athletes rather than employees and maintained unlawful work rules. In addition, the Complaint will allege the Pac-12 Conference and the NCAA are joint employers of the USC athletes. The charge was filed on behalf of the athletes by the National College Players Association, a college athlete advocacy group.

This likely tees up a case for the NLRB to determine whether NCAA athletes are employees under the National Labor Relations Act. Last year, NLRB General Counsel Jennifer Abruzzo issued GC Memo 21-08 titled “Statutory Rights of Players at Academic Institutions (Student Athletes) Under the National Labor Relations Act.” In that memo, Ms. Abruzzo set forth her position that certain athletes at academic institutions are employees under the National Labor Relations Act (NLRA) and misclassifying the players as mere student-athletes would, in her estimation, violate Section 8(a)(1) of the NLRA (which prohibits employers from interfering with employees’ rights to engage in concerted action for their mutual aid or protection).

If the Board finds that the players are employees entitled to the protections of the NLRA, the players will be able to unionize and bring unfair labor practice charges against the university. A companion case involving UCLA athletes was withdrawn, likely to avoid issues implicated by UCLA being a state school and the NLRB not having jurisdiction over employees of a state.

In 2015, the union-friendly Obama Board issued a decision declining to exercise jurisdiction over a group of Northwestern University football players who had petitioned to unionize. That decision, however, left open the question concerning whether the football players are, in fact, employees under the NLRA.

The complaint will be scheduled for a trial before an administrative law judge, who must render a decision before the case can proceed to the Board. This is likely the start of a long slog in a case that some observers believe has the potential to ultimately end up before the Supreme Court.

As for what that Court might do, it issued a unanimous 2021 opinion in NCAA v. Alston holding that NCAA rules limiting the education-related benefits that schools may offer student-athletes violated federal antitrust law. In a stinging concurring opinion, Justice Kavanaugh shredded the NCAA, suggesting that many of its rules against compensation that were not at issue in that case likely also violated antitrust laws. Justice Kavanaugh explicitly mentioned collective bargaining as one of the mechanisms that could resolve compensation-related questions for student-athletes.

www.shawe.com