The National College Players Association has filed unfair labor practice charges against the NCAA, Pac-12 Conference, UCLA and USC, claiming that the schools and organizations have unlawfully violated the employee rights of college football and basketball players under the National Labor Relations Act (NLRA).
“Within the past 6 months, the employers have interfered with, restrained, and coerced its employees…by repeatedly misclassifying employees as ‘student-athlete’ non-employees,” the NCPA wrote as the basis for the charges it filed Tuesday with the National Labor Relations Board’s regional office in Los Angeles.
The athlete advocacy group also cited the various rules and restrictions on athletes, such as those dealing with social media or third-party communications, which the NCPA argues impedes their rights as employees.
The NCPA’s action seizes upon a memo written in September by the NLRB’s general counsel Jennifer Abruzzo, in which she advised the agency’s field offices that the misclassification of employees as “student-athletes” violated the NLRA. In doing so, Abruzzo cited the U.S. Supreme Court’s unanimous ruling for college athletes in the class action antitrust lawsuit, NCAA v. Alston.
Abruzzo emphasized that although Alston was limited to NCAA rules governing academic-related (as opposed to athletics-related) costs, the Court found that “amateurism” has had a shifting definition over the years, signaling that the NCAA views its rules as capable of evolving. In her memo, Abruzzo also drew heavily from a concurring opinion authored by Justice Brett Kavanaugh, who advocated for college athletes’ labor rights and described the NCAA and its members as acting like a cartel to suppress those rights. While the concurrence does not change law, it is influential.
“These athletes deserve every right afforded to them under labor laws—just like other hard working Americans,” Ramogi Huma, the NCPA’s executive director, said in a statement Tuesday. “College athlete employee status will be key, in part, because employees get paid.”
The NCPA’s charges—against both schools, conferences and the NCAA—are specifically teed up to test the joint employment doctrine, in which a person may be deemed to be employed by a secondary employer if that entity holds certain sway over the employee’s terms and conditions. Joint employers generally take on shared responsibilities to pay and compensate an employee.
To date, the joint employer argument hasn’t prevailed in college sports law—at least in the context of the Fair Labor Standards Act, a different federal law that governs minimum wage and overtime pay.
In 2019, the U.S. Court of Appeals for the Ninth Circuit rejected a lawsuit, Dawson v. NCAA, wherein the plaintiff football players maintained they were employees of their schools, the PAC-12 and the NCAA. The appellate court reasoned that the NCAA doesn’t employ athletes and instead only regulates college sports. It also surmised that college athletes, unlike employees, lack an expectation of compensation. Three years earlier, the U.S. Court of Appeals for the Seventh Circuit reached the same conclusion in Berger v. NCAA. There, the court found the purported employment relationship “too tenuous” for any sort of legal recognition.
The Department of Labor’s own Field Operations Handbook has also been cited to attack the joint employer argument. “College athletes,” it expresses, “who participate in activities generally recognized as extracurricular are generally not considered to be employees…”
But the times may be changing. In Johnson v. NCAA, which is currently before the U.S. Court of Appeals for the Third Circuit, a district judge has sided with the players’ joint employer argument. Judge John Padova has described the NCAA as wielding employer-like authority, such as by restricting the recruiting process of college athletes, adopting caps on hours that athletes can spend on athletics and outlining permissible forms of discipline.
Abruzzo, in her September memo, had written that she would consider pursuing the joint theory of liability “because players at academic institutions perform services for, and [are] subject to the control of, the NCAA and their athletic conference, in addition to their college or university.”
It is important to stress that Abruzzo, a former union attorney, is not one of the five voting members on the NLRB, some of whom have a history of favoring management in labor disputes.
Huma, who was instrumental in passage of California’s first-in-the-nation college athlete NIL law, was previously behind the collective bargaining effort, in 2013, of six Northwestern football players, whose union bid won support from the NLRB’s regional office in Chicago before facing unanimous rejection by the national board.
In November, another athlete advocacy group, the College Basketball Players Association, filed its own unfair labor practices charge against the NCAA, which was routed to the NLRB’s regional office in Indianapolis, where the NCAA is headquartered.
By simultaneously filing a charge against both a public (UCLA) and private (USC) university, the NCPA hopes to set a broad, national precedent for the employee status of Division I college athletes in the revenue-producing sports. At the same time, one possible hurdle is that the NLRA governs the employee status of workers at private employers, not public ones. Here, UCLA would be a joint employer with two private entities, the Pac-12 and the NCAA.
The filing of the unfair labor practices charges will kick off a complex review process under administrative laws that govern the NLRB.
First, NLRB agents will conduct a multi-month review, which might include the solicitation of sworn affidavits. Eventually, the agents will prepare a report for the Los Angeles regional director, Mori Rubin, an experienced agency official who began her career at the NLRB 42 years ago. Rubin will then render a decision, either issuing a complaint against the schools, conference and NCAA, or dismissing the charges. If Rubin sides with the NCPA, she could petition a federal court to issue a restraining order that would prevent parties from treating athletes as non-employees. An administrative law judge could also weigh in.
Most unfair labor practice charges fall short of their stated ambitions. Over the last two years, just 4.8% of charges have made it to the complaint threshold, while about a third have led to settlements. The process could also take several years to play out. The Northwestern football players’ bid took two-and-a-half years between when the petition was filed to when the national board ruled. The process for the NCPA’s action could be further elongated with an appeal of an NLRB ruling to a federal appeals court and, potentially, the Supreme Court.