National Labor Relations Board Could Make College Athletes Employees

Last Updated on February 2, 2024

This is a unique time in college athletics as the tide is turning to create a more equitable system for college athletes. In 2021, college athletes gained the right to profit from their name, image, and likeness. The next major issue in college athletics is whether college athletes should be classified as employees. This issue is currently being heard by the National Labor Relations Board (NLRB) at their regional office in California. 

In February of 2022, the National College Players Association filed unfair labor practice charges with the NLRB against USC, UCLA, the Pac-12 Conference, and the NCAA. The charges seek to affirm employment status for Division I Football Bowl Subdivision football players and Division I men’s and women’s basketball players. The hearing began in December of 2023 and resumed on January 22, 2024. This case has the potential to completely alter the future of college athletics.

The NLRB Hearings So Far

In December 2022, the NLRB decided to prosecute the complaint. However, the complaint is only being prosecuted against USC, the Pac-12, and the NCAA because UCLA is a public school and as such does not fall within the NLRB’s jurisdiction. However, by alleging the complaint against the Pac-12 and the NCAA as joint employers the athletes are seeking to ensure that the ruling applies to athletes at both public and private schools.

The focal point of the case is the level of control that USC exercises over its athletes. Control is an important factor when seeking to determine if an employer/employee relationship exist. The more control a party exercises over another party, the more likely it is that an employer/employee relationship exist. 

Accordingly, lawyers for USC, the Pac 12, and the NCAA are attempting to paint college athletics as an extra curricula activity. Conversely, lawyers for the athletes are attempting to show that the time commitment required of college athletes is akin to that of a full-time job.

At the start of the hearing last December, USC’s lawyer analogized participating in college athletics to participating in USC’s marching band and even to participation on a high school sports team. However, the athletes painted a very different picture. 

For example, former USC running back, Brandon Outlaw, testified that athletes spent an average of 50 to 60 hours per week on football related activities during the season and 30 to 40 hours during the off season.  Outlaw testified that USC attempts to control what athletes post on their social media accounts and to control what athletes say to journalists.

When the hearing resumed last week, USC’s deputy athletic director, Denise Kwok, testified. Kwok noted that the athletic department does not have an athlete handbook nor a social media policy. However, the NLRB’s lawyers presented evidence of a school website containing links to a 2021-2022 Student-Athlete Handbook and social media policy that Kwok says was publicized in error.

Additionally, the NLRB’s lawyer addressed issues of conference realignment and how it would impact athletes. Kwok failed to provide a clear answer on the potential impact of conference realignment. However, Kwok stated that if there was an effect on an athlete’s well-being the athletic department would do its best to mitigate those issues.

If the college athletes are successful, they would be deemed employees under federal labor law. This would have major ramifications for the future of college sports. College athletes would be able to earn salaries. College athletes would no longer be amateurs and would qualify for worker’s compensation benefits and access to all the benefits of employees under U.S. labor law. This includes the right to form a union.

Success in this case would finally bring the Northwestern football players’ attempt to form a union into fruition as this is not the first time a college athletes’ rights issue has come before the NLRB.

Unionization Attempts by College Athletes

In 2014, football players at Northwestern University petitioned to the National Labor Relations Board for the right to unionize. Kain Colter, who was Northwestern University’s star quarterback, teamed up with Ramogi Huma, the founder and president of the National College Players Association, to petition the NLRB for college athletes’ right to unionize.

Colter and Huma experienced initial success as the NLRB’s regional office in Chicago ruled that college athletes met the broad definition of an employee and as such could form a union. However, this ruling was appealed and the NLRB’s national office refused to assert jurisdiction over the case and dismissed the case.

The national office did not address the pivotal question of college athletes’ right to unionize, but simply refused to assert jurisdiction. The NLRB reasoned that the novelty of the petition and its potentially wide-ranging impacts on college sports would not have promoted “stability in labor relations.”” This decision or lack thereof essentially left the door open for future related cases.

In fact, college athletes have already taken advantage of the NLRB’s open ended stance on the issue. Last fall men’s basketball players at Dartmouth College petitioned the NLRB seeking the right to unionize. A hearing in this case was held in October and the college sports world is awaiting a ruling.

Relatedly, in September 2021 the NLRB made it clear that it would support college athletes’ rights. The NLRB General Counsel, Jennifer Abruzzo, issued a memo suggesting that college athletes are employees under the National Labor Relations Act and should be afforded all protections under the Act. This is significant as this memo will be guiding the NLRB regional office in California during the USC hearing and ruling. 

Moreover, USC’s case is different as this case is not seeking college athletes’ right to unionize. USC’s case asserts that USC, the NCAA, and the PAC-12 are engaged in unfair labor practices and illegally classify college athletes as amateurs when they should be classified as employees. 

This case is far from over and the issue of whether college athletes should be deemed employees is unsettled. The college athletes testifying in the USC case have made valid points demonstrating the major time commitment it takes to be a college athlete. For many, it is a full-time job in addition to the full-time job that is being a college student.

The professionalization of college sports is ever increasing as evidenced by the conference realignment issues that have been brought up during the hearing. It is more than reasonable to suspect that an increase in travel requirements for college athletes will have an impact on their life as a student.  This assertion seems to favor the college athletes’ position that the requirements of college athletes are more akin to that of employees.

Whether college athletes will be classified as employees remains to be seen as the hearing continues. One thing that is for sure is that the college athletes’ rights movement is continuing to grow and that change in college athletics is afoot.

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