Seven years after the NLRB dismissed a petition to recognize Northwestern football players as employees, college-athlete advocates scored an important, though preliminary, victory last Thursday. An NLRB regional director found merit in the argument that USC, the Pac-12 and the NCAA are joint employers. The finding launches a potential multiyear journey that could result in college athletes being deemed employees and unionizing. It might also reaffirm that they are amateurs.
As detailed by Sportico, two advocacy groups (the College Basketball Players Association and the National College Players Association) filed unfair labor practice charges following NLRB general counsel Jennifer Abruzzo’s 2021 memo arguing that college athletes are employees under the National Labor Relations Act.
If a college, the Pac-12 and the NCAA are joint employers, each would become responsible to pay that college’s athletes and offer them health care, vacation time and other benefits. The athletes could also try to form a union and collectively bargain. Those athletes, however, would become subject to performance reviews and other benchmarks. They could also be fired. Universities would rethink the economics of their athletic programs and potentially reduce their size or even eliminate them.
The prospect of the NCAA and conferences as joint employers is profound. The labor relations act doesn’t govern public sector employees, so whether college athletes are employees of state universities is outside the act’s scope. It is instead a question for states’ labor laws and a separate federal law, the Fair Labor Standards Act (FLSA), which guarantees minimum wage and is at issue in Johnson v. NCAA.
When the NLRB board declined to exercise jurisdiction over Northwestern football players, it noted that most NCAA D1 members (about 66%) are public universities. “It would not promote stability in labor relations to assert jurisdiction,” the five-member board wrote, since “the overwhelming majority” of FBS football programs are public. The NLRB members didn’t opine at the time on whether the players were employees.
If the NCAA and conferences—both of which are private entities—are joint employers of college athletes under the labor relations act, they could be deemed employers of athletes attending member public universities, too. In her memo, Abruzzo contemplated this possibility. “I will consider pursuing a joint employer theory of liability,” she warned, since athletes “perform services for, and subject to the control of, the NCAA and their athletic conference.” Abruzzo added that would be her position, “even if some of the member schools are state institutions.”
This is a key point: If the NLRB was previously uncomfortable recognizing private-college athletes as employees because it couldn’t make the same call on public-college athletes, joint employer recognition would address that concern.
Joint employment arises when one company hires a worker but an additional business stands to gain. An employee of a subcontractor, for example, performs labor that benefits a contractor. In September, the NLRB proposed a clarification of joint employer status to stress whether employers “codetermine” such factors as wages, benefits, hours of work, scheduling, hiring and discharge, discipline, workplace safety and supervision.
The Ninth Circuit notably rejected the NCAA, FBS and Pac-12 as joint employers in 2019. USC football player Lamar Dawson insisted that NCAA and Pac-12 eligibility rules governed his relationship with USC. But the Ninth Circuit didn’t buy it, stressing neither the NCAA nor conference “had the power to fire or hire him.” Although the case concerned the FLSA, expect the NCAA to stress it, as well as a similar case, Berger v. NCAA, from the Seventh Circuit.
Per NLRB policy, the NCAA, Pac-12 and USC can settle with the NCPA. Don’t expect that to happen. USC says it intends to rely on “75 years of favorable legal precedent” to build its defense, while the NCAA has long opposed college athletes as employees. A settlement also doesn’t seem plausible; USC athletes either are or are not employees.
Assuming no settlement is reached, regional director Mori Rubin will issue a complaint. The NCAA, the Pac-12 and USC would have 14 days to answer. Several months later, an NLRB administrative law judge would preside over a hearing that draws from witnesses, expert statements, depositions, subpoenas and other evidence. USC athletic department staff could be questioned about control over athletes’ schedules and time, and how many hours those athletes perform labor. NCAA and Pac-12 officials could be asked about their influence over USC and, by extension, Trojan athletes, who are also likely witnesses.
If the judge sides with the NCPA, he or she would draft a decision that explains why there is an unfair labor practice. The judge could also order remedies, including a cease-and-desist order to protect USC athletes’ employment rights. Conversely, the judge could conclude there was no violation of law and dismiss the complaint.
The judge’s ruling could then be appealed to the board. The board’s decision could then be appealed to the D.C. Circuit or the Ninth Circuit. That decision, in turn, could be appealed to the U.S. Supreme Court.
Should all these steps occur, they would do so over several years. There are other potential moves that could further elongate the timeline.
As O’Bannon v. NCAA, Alston v. NCAA and the passage of state NIL statutes showed, legal developments sometimes take time but can ultimately force the NCAA to change. The new NCAA president, Massachusetts Gov. Charlie Baker, could use this latest crisis as an opportunity to depart from the NCAA’s normal tactic of playing defense and instead explore fundamental reforms.
Morgan Lewis partner Harry I. Johnson III was an NLRB member when it ruled on Northwestern. He told Sportico he sees “overarching ramifications” from last Thursday’s “prosecution decision.” One is that while Abruzzo “long ago took a position on this issue, that analysis makes no distinction between the training and commitment in the service of an individual athlete’s desire to compete and the control related to typical employer situations. The board will have to confront that in its adjudication, months or years from now.”
He also has advice for the NCAA and conferences. “They will likely want to plan ahead strategically for either litigation outcome: Athletes are NLRA employees or they aren’t.”
