NCAA, Pac-12, USC Resist NLRB Defining College Athletes as Employees
Last Thursday, the NCAA, Pac-12 and University of Southern California dismissed labor officials’ contention that scholarship athletes are employees, saying it is “frivolous and without foundation in law or fact.” The assertion came in the form of three answers to NLRB regional director Mori Rubin’s May 18 complaint addressing USC football players and men’s and women’s basketball players.
The answers offered blanket, and largely non-descriptive, denials; it also listed defenses the three respondents will elaborate on in future filings. Their main point? The NLRB lacks jurisdiction since the athletes aren’t employees, so it’s not a labor law matter.
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The basis for the argument relies on the NLRB’s 2015 decision to not exercise jurisdiction over whether Northwestern football players were employees under the National Labor Relations Act (NLRA). A year earlier, NLRB regional director Peter Sung Ohr found that Northwestern football players were employees. Wildcats players provided a service—playing football games—for the benefit of a university that paid them scholarships, Ohr stressed (for more detail, read The Collegiate Employee-Athlete).
But when the five-member NLRB board in Washington D.C. took up the question, it punted. The board found that to rule on Northwestern players “would not serve to promote stability in labor relations.” It suggested the larger question of whether college athletes are employees would be better addressed by Congress and other decision-makers.
The USC, Pac-12 and NCAA argue that the NLRB should once again decline to exercise jurisdiction “because there have been no changed circumstances in the law sufficient to warrant the Board’s departure from its decision in Northwestern University.”
Whether that assessment holds up is uncertain.
The NLRB could find that state NIL statutes and the Supreme Court’s 2021 decision in NCAA v. Alston suggest the legal circumstances have changed. Recently, lawmakers and judges have become more skeptical of NCAA practices and amateurism rules in college sports.
The answers also contend employment recognition would “place the [NLRA] at odds with other existing” statutes, laws and policies, including Title IX, federal immigration laws, the federal tax code, state workers compensation laws and the Fair Labor Standards Act (FLSA). The answers also cite the Department of Labor’s field operations handbook; it’s not a law, but it’s influential and says college students who “partake in intramural and interscholastic athletics and similar endeavors” are not FLSA employees.
This defense is vulnerable to a critique by a three-judge panel in a recent hearing at the U.S. Court of Appeals for the Third Circuit for Johnson v. NCAA. The panel suggested that if the NCAA feels it must violate Title IX to comply with the FLSA, or vice-versa, the NCAA should devise a system of rules that enables it to comply with all laws, all the time.
The answers also raise Constitutional issues relating to USC’s student-athlete handbook and social media policy for student athletes. The school says that the First Amendment gives it the right to communicate a media and social media policy to its students, here athletes, and if the NLRB forces the school to express those policies a certain way, but not in other ways, the government is compelling speech in violation of its rights.
Rubin, who directs the NLRB’s Los Angeles office, issued the complaint after finding merit in a labor violations charge brought last year, for which he could not negotiate a settlement. The charge followed NLRB general counsel Jennifer Abruzzo’s memo advocating that college athletes are employees and arguing the “student-athlete” moniker unlawfully misclassifies college athletes.
On Nov. 7, an NLRB administrative law judge (ALJ) will hold a hearing in Los Angeles on whether USC football and basketball players are employees under the NLRA, and whether USC, the Pac-12 and NCAA are liable for misclassifying them as non-employees.
The hearing, which will include witnesses and evidence, will focus on the “work” of the players, which generates revenue for USC but not wages for players, many of whom receive scholarships. This work is performed under the supervision and/or control of USC coaches and athletic department officials. Meanwhile, as the complaint contended, the Pac-12 and NCAA control the “labor relations policies” of USC athletics. This symbiotic relationship arguably makes USC, the Pac-12 and NCAA joint employers of USC players.
The key law at issue, the NLRA, governs whether workers at private employers—including USC, the Pac-12 and the NCAA—are employees. State labor laws tackle that question for workers at public universities.
The ALJ’s decision will likely not be the final word. It can be appealed to the Board in D.C., and the Board’s decision is subject to challenge at a federal appellate court.
But if the ALJ concludes the players are employees, and if that finding withstand appeals, the implications are profound.
For starters, USC, the Pac-12 and NCAA would be on the hook to pay the players wages and other employment benefits. Employees under the NLRA can generally form unions and collectively bargain.
The finding could also mean that the Pac-12, and by extension other Power Five conferences, along with the NCAA are joint employers of football and basketball players—and perhaps other sports—at other major D1 programs.
The scope of athletes might even include those at public universities. Although some state laws prohibit public universities from becoming athletes’ employers, those prohibitions may not extend to private employers like a conference or the NCAA. In other words, a college athlete at UVA might be construed not as a UVA employee but one of the ACC and/or NCAA.
The USC matter is not occurring in a vacuum. Johnson v. NCAA, which considers whether college athletes are employees under the FLSA, is before the Third Circuit. Congress is considering far-reaching legislation to transform the relationship between athletes and their universities. Last week the California Assembly narrowly passed a bill that, if it becomes law, would allow college athletes to share in revenue.
If there was any honeymoon period for new NCAA president Charlie Baker, it is officially over.
