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NLRB Waits for Athlete Plaintiffs as NIL Money Quells Labor Pains

Daniel Libit and Michael McCann
·7 min read

Last September, the National Labor Relations Board’s general counsel, Jennifer Abruzzo, grabbed headlines and stole athlete advocates’ hearts with a resolute field memo arguing that college athletes are employees of their universities.

Abruzzo’s notice, which followed the U.S. Supreme Court’s unanimous ruling for the players in NCAA v. Alston and the inception of NIL, was heralded as its own catalytic moment in the prevailing effort to tear down the governing body’s core creed of amateurism.

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“Labor Memo Amounts to New Stance From Feds Against the NCAA,” read the headline of a New York Times story.

In an interview with Sports Illustrated, Michael LeRoy, a professor of labor law at Illinois, described Abruzzo’s guidance as opening “The Pandora’s Box,” and predicted it would lead athletes to pursue collective bargaining within the year.

However, nine months later, there is scarce outward evidence of impending change in the employment status of college athletes. Not a single current collegiate athlete has done so much as file an unfair labor practices charge—a process that requires little more than a computer and an hour of free time. No attorney or representative is needed.

“I wouldn’t say I’m surprised,” Abruzzo told Sportico in an interview last week. “It was never my goal to have people file charges. But, you know, charges can be filed by anybody. They don’t need to be filed by current college players.”

Although college athletes have actively promoted #NotNCAAProperty and other public campaigns advocating for their economic and legal rights, Abruzzo speculated that, as with other categories of workers, they might fear retaliation if their names were to appear in a formal unionizing effort.

“Look at Colin Kaepernick,” Abruzzo said, referring to the blowback over the former NFL player’s decision to kneel during the national anthem.

LeRoy told Sportico that NIL might be serving as a distraction for athletes’ labor activities. “I don’t view that as a long-term impediment to organizing,” he added.

To that end, Abruzzo believes that the past year’s developments around NIL—countenanced through a mishmash of state laws and a suspension of the NCAA’s rules prohibiting endorsement deals—has only bolstered her memo’s position.

“That makes (athletes) much more akin to professional football players who are certainly statutory employees and enjoy all of the rights that are afforded them under the (National Labor Relations Act,” Abruzzo said. “So I certainly think by suspending and creating more flexibility for players to benefit from their playing, makes them work into statutory (protection).”

Nonetheless, Abruzzo acknowledged the long gauntlet for establishing athletes’ employee rights under the NLRA and said there are more expeditious ways to get players paid.

“I think that likely the quickest would be legislation—federal legislation,” she said. “We’ve got a limited universe in our world of cases that we can bring forward. And then, each one will likely be fact-specific in terms of the control or right to control that universities or divisions or the NCAA has. And then the board has to either agree or disagree. And if the board agrees with me, there could be an appeal, and then it would get to the courts. And then another problem with the courts is you could bring cases in various courts, and then there could be a split in the circuits.”

While media headlines and law-firm write-ups last September described Abruzzo’s memo as speaking for the federal government or Biden Administration, she cautions against that portrayal.

The memo, she clarifies, speaks only for its author.

“We are an independent, neutral federal agency,” Abruzzo said of the NLRB. “So, I’m not in discussions with the administration about any of the memos that I put out or any of the positions that I’m taking.” 

At the same time, Abruzzo speculates that President Biden is likely supportive. 

“The President himself,” she opined, “is a tremendously great pro-worker President, and he’s been very public about that. So, I presume that, without knowing . . . he shares my positions with regard to the fact that our statute needs to be broadly construed that the definition of employees should be broadly construed.”

While not one college athlete has filed an NLRB charge based on Abruzzo’s interpretation of the NLRA, college athletes are pursuing employment recognition through a different federal law, the Fair Labor Standards Act. In Johnson v. NCAA, college athletes argue they should be paid part-time, like their work-study classmates. The case is currently before the U.S. Court of Appeals for the Third Circuit.

That’s not to say Abruzzo’s strategy for college athletes as employees has been ignored entirely.

Last November, six weeks after her memo was released, Michael Hsu—a former regent at the University of Minnesota who has taken up college-athlete rights as a personal cause—filed the first responsive NLRB charge seeking to establish college athlete employment rights.

With the NLRB only having jurisdiction over private employees, Hsu decided to file his against the NCAA, embracing the joint employer theory of liability that Abruzzo had signaled she would “consider pursuing” in her memo. Under that doctrine, the NLRB’s board could assert jurisdiction over public universities that are members of private nonprofits, such as athletic conferences or the NCAA.

After filing his charge and sitting for several hours of interviews at an NLRB regional office, Hsu says he was asked to provide a list of college athletes who could be interviewed as part of the agency’s investigation. Two weeks later, he submitted 20 names of current and former college athletes; Hsu says he has not heard whether any of them had been interviewed. His efforts to determine the status his charge have failed to produce any updates since Christmas.

“The clock is not ticking, nothing is really happening, and I don’t know why that is,” he said.

Piggybacking on Hsu’s efforts, in early February, Ramogi Huma, the executive director of the National College Players Association, filed his own NLRB charges against the NCAA, Pac-12 conference, USC and UCLA. Huma, a former Bruins football player who led the lobbying effort for California’s first-in-the-nation college athlete NIL bill, has been less keen in pursuing athlete unionization since the Northwestern football players’ attempt in 2014, which he was a key part of, floundered sever years ago.

More recently, Huma has championed another California bill that would require schools in that state to share athletic revenue with their football and basketball athletes. That legislation has since stalled in committee. 

In April, a lawyer representing USC wrote to the NLRB requesting a two-week extension to file its response to Huma’s charge, citing the “tremendously expansive requests” from the regional investigator and the “busy time period” at the conclusion of the spring sports season. The NLRB confirmed that the respondents’ formal answers have since been received, but denied a public records request from Sportico that sought copies of them.

Some athlete advocates have joined schools in voicing concern that the expansion of compensation or employee rights will came at the cost of non-revenue sports and female athletes. Abruzzo disputes this argument, attributing it to the NCAA’s “strategy” of avoidance and delay.

“I think if [institutions and the NCAA] hear what workers/players have to say,” Abruzzo said, “through their collective voices, through their collective bargaining representative, through whatever advocate, I think that’s going to inure to the benefit of everyone.”

What if schools cut sports to pay for the new labor costs associated with employing athletes?

“We’d have to see the facts and whether or not what they were doing was really in retaliation for the players trying to get what they feel they are rightfully owed,” Abruzzo said. “If their motivation is unlawful, it’s going to be found to be unlawful.” Her comments, in other words, suggest it could be viewed as illegal for a college to cut sports if it does so after the recognition of college athletes as employees.

But all that is far down the road in a process that is proving anything but swift.

Abruzzo says she  is not privy to the status of the regional directors’ investigations on the Hsu and Huma charges.

“I can’t say whether or not these charges do the trick, or don’t do the trick,” she said.

Last month, an increasingly impatient Hsu decided to make an impromptu visit to the NLRB’s national headquarters while he was in Washington, D.C. attending a college sports reform convention. He had hoped to get some update as to where his charge stood, but came up empty.

“I went there without an appointment,” he said, “so I was quickly escorted out the door.”

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