NLRB Rejects USC ‘Student-Athlete’ Motion to Dismiss After Late Filing

This story and the headline have been updated to reflect the NLRB’s rejection of USC’s motion to dismiss.

The National Labor Relations Board on Monday rejected the University of Southern California’s motion to dismiss a complaint depicting the school, the Pac-12 and NCAA as joint employers of Trojans football players, men’s basketball players and women’s basketball players.

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A letter from the NLRB’s office of the executive secretary indicated that USC filed its motion too late. A motion must be filed no later than 28 days prior to a scheduled hearing, and USC filed its motion on Oct. 18, 20 days prior to a Nov. 7 hearing.

Although USC’s motion has been rejected on procedural grounds, it reveals key arguments the school intends to raise going forward.

Most significantly, the university argues that NLRB general counsel Jennifer Abruzzo “selectively and inappropriately omitted” relevant context and relied on “gerrymandered” and “partial” provisions of university policies in accusing the school of violating the National Labor Relations Act (NLRA).

Last month, NLRB regional director Mori Rubin issued an amended unfair labor practice (ULP) complaint reflecting Abruzzo’s decision to litigate the case. USC allegedly deprives athletes of NLRA rights to self-organize and wrongfully misclassifies them as non-employee “student-athletes”—a longstanding NCAA moniker that, Abruzzo charges, suppresses the recognition of employment status.

But as USC argues in a memorandum to Administrative Law Judge Eleanor Laws, Abruzzo erroneously portrays “indisputably educational recommendations” as workplace-like rules and deceptively conflates the experiences of college students who play a sport with those of college employees.

While Abruzzo regards USC’s policies for media interviews and media requests involving athletes as consistent with how an employer—such as a pro team or league—would restrict employee speech, USC disagrees.

“The language [of the policies],” USC writes, “does not state the media is prohibited from reaching out to Student-Athletes directly, or that Student-Athletes are prohibited from speaking with the media directly about anything or contacting any media on their own.”

The school adds its athletes “maintain complete discretion over whether to participate in interviews, and even over whether they choose to answer any questions.”

That said, USC acknowledges it tries to shield Trojan athletes from “intrusive media requests” as they juggle school responsibilities. Still, USC insists its athletes, like their classmates, have final say.

USC has faced recent criticism for limiting journalists’ access to players. Last month, the school temporarily suspended journalist Luca Evans’s access to the football team. USC claimed that Evans, who writes for the Southern California News Group, violated the school’s media policy by speaking with players outside of permissible times and contacting players’ parents, among alleged infractions.

Abruzzo’s complaint is also deficient, USC argues, because of what it doesn’t say.

The complaint cites USC’s “important message about social media” in which the school recommends athletes keep their accounts private and to not post photos or join groups that engage in inappropriate language. These guidelines might be construed as USC attempting to control athlete speech.

But USC blasts that inference, saying the complaint glaringly omits introductory language in which the school explicitly wrote “USC supports an individual’s expression of First Amendment rights of free speech. We do not place restrictions on the use of social media by our student-athletes.”

USC also ridicules the notion that relying on the phrase “student-athlete” is somehow an illegal act. The school notes the phrase has been “widely used for decades in college sports,” is codified as law in the California Education Code and supplies an “accurate description” for college students who play a sport. “It is nonsensical to assert that USC’s use of the term,” the school argues, “is in and of itself a violation of the [NLRA].”

Abruzzo seeks a court order that would obligate USC, the Pac-12 and NCAA to cease and desist from classifying USC athletes as student-athletes and reclassify them as employees in personnel files, handbooks, rules and assorted other records.

Abruzzo garnered attention in 2021 when she invoked opinions authored by U.S. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh in NCAA v. Alston to conclude college athletes are employees under the NLRA. Two advocacy groups, the College Basketball Players Association and National College Players Association, filed ULP charges that relied on Abruzzo’s reasoning.

It’s unlikely the parties will settle out of court; after all, the athletes are employees or they are not—there’s no middle ground that could make a settlement work.

If the athletes are deemed employees, other USC athletes could claim the same status, as could athletes at private colleges with similarly high-profile athletic departments. Also, if the Pac-12 and NCAA are deemed joint employers of athletes at USC (a private college), athletes at public universities—employment matters for which are determined by state laws, not the federal NLRA—could argue they, like USC athletes, can call their conference and the NCAA their employers.

The parties are currently scheduled to appear before Laws at the NLRB’s regional office in Los Angeles for a hearing that would run from Nov. 7-10, and then resume on Nov. 28 and continue to Dec. 1. If necessary, the hearing would resume for a second time, most likely in early 2024.

Laws won’t have the final word. Her decision would be subject to appeal to the NLRB in Washington D.C. and a subsequent appeal to a federal appellate court (and, potentially, a subsequent petition to the U.S. Supreme Court). All told, the matter could remain in court for several years. It is one of several ongoing legal controversies involving college athletes as employees.

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