Unfair Labor Charge Against NCAA May Offer NLRB a New Test Case

·6 min read

In the latest effort to have college athletes recognized as employees under federal law, the College Basketball Players Association (CBPA) has filed an unfair labor practices charge (ULP) against the NCAA. CBPA is a new, California-based advocacy organization led by a former University of Minnesota regent Michael Hsu, a management consultant, and his attorney and cousin, Gino Kwok.

The charge, first reported by Bloomberg, was made last Thursday in the NRLB’s regional office in Indianapolis, where the NCAA is headquartered.

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The CBPA contends that “within the last six months, the NCAA has violated section 8(a)(I) by classifying college athletes as student-athletes.”

CBPA’s argument embraces the viewpoint of NLRB general counsel Jennifer Abruzzo. The longtime union lawyer took office in July following her Senate confirmation on a 51-50 vote. Two months later, Abruzzo issued a much-publicized memo in which she argued that the student-athlete moniker facilitates an unlawful suppression of workplace protections for college athletes. She also maintained that college athletes function as employees, given how much of their time and academic experience is directed by athletic considerations.

The arguments from Abruzzo echoed those in a 2017 memo issued by then-NLRB general counsel Richard Griffin. That memo was rescinded 11 months later by his successor, Peter Robb.

Abruzzo’s memo does not change the law. Unlike the five NLRB board members, Abruzzo lacks a vote on matters that alter precedent. That said, Abruzzo is an influential advocate and oversees investigations of charges, among other duties that could have impacts on college sports.

Last week, Abruzzo appeared on the End of Sport podcast, where she effectively appealed to “athletes or their representatives” to file a complaint to “jumpstart the process” of investigating the NCAA’s amateur model. She went on to say she was “confident” the NLRB board would concur with her assessment that college athletes are employees of their universities.

In an interview with Sportico, Hsu says he took Abruzzo’s comments as an open solicitation for action, which no one had taken in the six weeks since the Sept. 29 release of her memo.

“I think this is a layup for Abruzzo, or maybe a slam dunk, based on what she said,” said Hsu. “I think I gave them what they needed to do an investigation, which should be very simple.”

An NLRB spokesperson declined to comment for this story, and the NCAA did not respond to an email inquiry.

On its face, the unfair labor practices charge, which spells out its basis in a single sentence, is hardly the most robust attack against the forces of amateurism. But Hsu contends that is besides the point, at least for now.

“I was not looking for the perfect case,” he said. “I was looking for a case.”

Hsu filed the charge after months spent unsuccessfully trying to convince a number of current college athletes to do so themselves. He says he also had multiple discussions with Ramogi Huma, executive director of the National College Players Association, trying to convince the NCPA to join his efforts, but to no avail.

Nonetheless, heartened by Abruzzo’s public comments, Hsu ended up filing the charge electronically Wednesday night, with the assistance of a staffer from a local NLRB office in Minnesota. He notes that he encountered some logistical hitches, since the standard ULP form does not include a box to check for “misclassification,” the specific charge he is alleging against the NCAA.

Hsu, who served as a U of M regent from 2015 until earlier this year, says he has been passionate about college athlete rights issues since his undergrad days. In 2016, he helped facilitate a detente between the university and Gophers football players, who threatened to boycott the team’s bowl game after 10 of their teammates were suspended over sexual assault allegations. The protesting athletes, and Hsu himself, believed the players’ due process rights had been violated during the school’s investigation. After a series of last-ditch meetings, the Golden Gophers ended up playing in the Holiday Bowl, defeating Washington State 17-12.

During his regency, Hsu gained a reputation for outspokenness, at one point accusing his university of “building a culture of non-compliance.” He lost his bid for a second six-year term in March, following an intense election campaign in which his supporters claimed Hsu had been targeted by a well-financed political operation.

Hsu says his plan for the players’ association grew out of the ultimately unsuccessful effort from 2013 to 2015 to organize Northwestern’s football team as a collective bargaining unit. That union bid initially won support from Peter Ohr, then the NLRB’s Chicago regional director, before being rejected unanimously by the NLRB’s national board. The board, however, made clear that its ruling was limited to “this particular case,” and was based on a desire to “promote stability in labor relations.”

The argument that college athletes are employees of the NCAA is premised on the joint employer theory, which is at issue in Johnson v. NCAA. Under this view, the NCAA wields such considerable sway over college athletes that it acts as a de facto employer. A private college and conference could also be considered employers under the National Labor Relations Act.

Although the CPBA does not currently represent college athletes and although Hsu is not a college athlete (he says Kwok very briefly played basketball at UC-Riverside), the NLRB has no standing requirement for the filing of a ULP charge. “Any person,” federal law instructs, “may file a charge alleging that any person has engaged in or is engaging in any unfair labor practice affecting commerce.” That said, the NLRB can consider the absence of college athlete involvement as a factor when reviewing the charge.

Hsu said he only recently learned he could file the charge against the NCAA himself.

The filing will lead the NLRB to assign agents to review available evidence and potentially take affidavits from Hsu and NCAA officials. The NLRB regional director for Indianapolis, Patricia Nachand, will then decide to issue a complaint against the NCAA or dismiss the charge. The issuance of a complaint would bring on a multistep process that could involve a petition to a federal court for a temporary restraining order against the NCAA, a review before an administrative law judge and an eventual hearing with the NLRB board. The NCAA, of course, will have multiple opportunities to raise defenses and accompanying arguments.

Nachand is not bound by Abruzzo’s memo and could reach opposite conclusions on questions of law. Most NLRB charges fall short of their objectives. Since the start of 2020, there have been 30,950 ULP charges filed. Only 1,487—just 4.8%—made it to the complaint stage, while 10,299 (33.3%) led to settlements, the NLRB’s preferred method of dispute resolution. Depending on how far they advance, NLRB charges can take many months to play out.

Even if Hsu’s or some other effort were successful in establishing the rights for college athletes to organize, a bigger question is to what extent they would do so. Last year presented rare opportunities for college athletes to organize and protest, with the pandemic disruptions and the unrest over George Floyd’s murder by Minneapolis police.

In the summer of 2020, a group of Pac-12 athletes, assembled under the hashtag banner #WeAreUnited, issued a demand letter to their conference, which included a 50% split of conference revenue to be distributed evenly among all athletes. Despite their threat to opt out of games unless their demands were met, the Pac-12 football season eventually went on without any such accommodations.