Executive Summary: The National Labor Relations Board’s (NLRB’s) recent unfair labor practice (ULP) complaint against the University of Southern California (USC), the National Collegiate Athletic Association (NCAA), and the Pac-12 Conference (Pac-12) sets the case for collegiate athletes to unionize.
USC is one of the favorites to win the national championship in college football this year. Armed with the reigning Heisman Trophy winner at quarterback, loads of returning starters, and an enviable recruiting class, head coach Lincoln Riley is looking to bring home a championship to Trojan nation for the first time since 2004.
However, all is not well in Troy. In what is the most significant step toward college athlete unionization to date, the NCAA, Pac-12, and USC face allegations of violating the National Labor Relations Act (NLRA) for failing to classify student-athletes as employees. The ULP complaint calls for the parties to “cease and desist from misclassifying the players as ‘non-employee student-athletes,’” and further asks that those athletes be reclassified as “employees” in all “handbooks and rules.”
The case sets the stage for collegiate athletes to unionize. And should the Labor Board be successful, this case could lead to revenue sharing for universities and colleges that generate billions of dollars from the activities performed by collegiate athletes. But this development should come as no surprise. In 2021, NLRB General Counsel Jennifer Abruzzo issued a memo informing the public that her office considers college athletes to be employees, and where colleges and universities deem them otherwise, such conduct constitutes an unfair labor practice for misclassification. Abruzzo added that athletic conferences and the NCAA share responsibility, arguing that their ability to dictate participation — terms and conditions — provides sufficient indicia to find joint employer status.
The General Counsel’s finding of joint employer status distinguishes the USC case from the last unsuccessful attempt to characterize student-athletes as employees. In 2015, the Northwestern University and College Athletes Players Association argued for collegiate athletes’ status as employees in a case involving Northwestern University’s football team. However, an election never occurred, as the Labor Board declined to hold an election due to jurisdictional issues. Specifically, while the NLRA applied to private sector workers (i.e., athletes at private universities), it lacked jurisdiction over the vast majority of college football programs, as they were public universities subject to the jurisdiction of dozens of state labor boards. By filing a complaint over a private university, the Pac-12 conference, and the NCAA, the agency has put itself in a position where, if the complaint is meritorious, it would have jurisdiction over state universities under a joint employer theory, that it currently is precluded from exercising.
The Bottom Line
This Labor Board has shown that it will challenge century-long beliefs of employee status, and in this case, it is attacking the notion that college football and basketball players are student-athletes, not employees. If successful, there will be a sea change in how colleges and universities treat these newfound employees. Consider:
- Athletes would be subject to federal and state wage and hour laws — a compliance issue in an athletic setting for universities;
- Students could be subject to discipline up to and including the termination of their employment, which would impact recruiting, scholarships, and other factors that are still unknown;
- Student-athletes could be subject to performance reviews;
- A college could decide not to renew any defensive starters from the previous season based on performance reviews indicating they gave up too many points, perhaps even doing so with severance packages in exchange for a release of claims;
- Star athletes who receive recognition, for example, “All-Conference,” the equivalent of “Employee of the Year,” are provided bonuses or raises;
- Funding used for recruiting could be re-directed to facilitate calls to improve workplace conditions;
- Workers’ compensation would cover injuries sustained by student-athletes;
- A kicker with a history of blocked kicks and injury close calls is injured in the final game and sues the college for negligent retention.
Currently, legislation in the House of Representatives is being proposed to counter student-athlete “employee” status, which may render moot this activist General Counsel’s attempts to upend college athletics. Notwithstanding, this litigation has universal truths for all employers, not just for colleges and universities. Employers who do not wish to become unionized should take steps to minimize employee dissatisfaction. Employees who feel management treats them fairly and listens to them are less likely to seek union representation. Some basic strategies include reviewing and providing competitive pay and benefits, implementing equitable policies, encouraging open communication between employees and management, and ensuring there are opportunities for employee advancement. Such tactics can ensure that employers can remain union-free and earn a “V for victory.”
If you have any questions regarding this case or other collective bargaining issues, please contact the authors of this Alert, Rob Entin, partner in our Chicago office, at rentin@fordharrison.com, and Robert Baker, attorney in our Atlanta office at rbaker@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.