Notre Dame Athletes Cast as Employees in New NLRB Complaint
The University of Notre Dame Thursday was charged with violating section 8 of the National Labor Relations Act by allegedly misclassifying its athletes as “student-athletes” when they are employees.
With an eye towards the upcoming presidential election, the College Basketball Players Association (CBPA), an advocacy group led by Michael Hsu, filed the unfair labor practice (ULP) charge. The fact that an advocacy group and not Fighting Irish players filed the charge is not disqualifying, since there is no standing requirement to file an unfair labor practice charge. Federal law authorizes “any person” to file a charge if it alleges that “any person has engaged in or is engaging in any unfair labor practice affecting commerce.”
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Notre Dame is the fifth school to face a ULP charge filed by Hsu, a former University of Minnesota regent. In the wake of National Labor Relations Board general council Jennifer Abruzzo’s September 2021 memo on college athletes’ employee status, Hsu filed the first ever unfair labor practice charge on behalf of college athletes, which targeted the NCAA. Abruzzo asserts that when the term “student-athlete,” a hallmark of NCAA amateurism, is used to suppress employee rights, it is promoting illegal conduct.
In early 2022, another organization, the National College Players Association, led by players rights’ advocate Ramogi Huma, filed a ULP charge against USC, the Pac-12 Conference and the NCAA. Hsu said his original charge was then paused so the NLRB could commit its focus to the USC matter.
An administrative law judge in California is currently weighing whether USC football and men’s and women’s basketball players are employees not only of their college but also, via the concept of joint employment, their conference and the NCAA. If the athletes are employees of their conference and the NCAA, then those two private entities could be deemed joint employers of other athletes, including those at public colleges.
Meanwhile, in New Hampshire, Dartmouth men’s basketball players—who petitioned the NLRB on their own to form a union—have been recognized by an NLRB regional director as employees who could form a union, which they did on March 5. The matter is on appeal.
Hsu, for his part, has filed four additional ULP charges against Northwestern, Dartmouth and the Ivy League, none of which has made any noticeable progress. Noting that the process of filing a charge takes less than 15 minutes, Hsu said he has resisted filing more so not as to overwhelm the NLRB’s staff.
However, Hsu said he is concerned that the possible election of Donald Trump in November could lead to Abruzzo’s firing early next year, so he wanted to get the ball rolling now in South Bend, Ind.
“The clock is ticking because of the political calendar,” Hsu told Sportico in a phone interview. “I don’t know if they’ll get any work done on this in 2024. I am sure Notre Dame will hire all the best law firms—maybe even better than USC’s—but my hope is to at least get something in process.”
The ULP charge will fall on the plate of Notre Dame’s new athletic director, Pete Bevacqua, who took over for the retiring Jack Swarbrick last month. In an interview with Sportico days before his departure, Swarbrick declined to specifically address the prospect of Notre Dame athletes unionizing, but said he believed the NLRB’s ultimate decision to decline jurisdiction in the 2015 Northwestern football players union bid was the correct one.
A Notre Dame athletics spokesperson did not respond Thursday afternoon to a request for comment.
Unlike USC, Dartmouth or Northwestern—where football players a decade ago unsuccessfully sought NLRA recognition as employees—Notre Dame’s football program competes as an independent school in the Football Bowl Subdivision. (Other ND programs, such as basketball, play in the Atlantic Coast Conference.)
The football team’s independence could carry sizable legal significance. When the NLRB declined to exercise jurisdiction in the Northwestern matter, the agency’s five board members highlighted that Northwestern is a private college that plays in a conference (the Big Ten) where the other schools are public and thus governed by varying state labor laws. The NLRB viewed that prospect as a potentially disruptive arrangement, since some of the schools might not be deemed employees under their respective state laws, while Northwestern football players would be employees and potentially union members.
The ACC is not named in the charge, nor are any specific Fighting Irish teams athletes cited as having their rights violated under the National Labor Relations Act. Rather, the charge says only that “Notre Dame” athletes have within the last six months been misclassified by the university as “student-athletes.”
If the Fighting Irish football players are employees, there is no conference consideration. This is one of the reasons why the unionization effort took place at an Ivy League school like Dartmouth, which plays in a conference where all eight members are private colleges.
Whether Notre Dame athletes are employees turns on a legal question: Do the players perform work for Notre Dame in exchange for compensation, and does the school have the right to control that work? Players who receive athletic scholarships and spend numerous hours a week on football, whose football games generate sizable TV and attendance revenue as well as enhanced alumni relations and admissions, and whose football schedule is treated by the school as more important than their class schedule, could be deemed employees. Players gaining preferential admissions to a selective college (Notre Dame is consistently regarded as an academically prestigious school) and various benefits, such as free apparel and meals, could make employee recognition more likely. So could the coaching staff’s substantial control of athlete schedules.
It’s unclear, however, if Notre Dame players would testify in favor of employee recognition. This is one of the unique features of the charge being filed by an advocacy group instead of the players: We don’t know what the players think.
The NLRB process could also take many months or longer to play out. Normally a regional director will order an investigation that includes interviews with witnesses (such as players and coaches) and a review of emails, memoranda and other records.
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