The National Labor Relations Board (NLRB) filed a complaint last week in Los Angeles against USC, the Pac-12, and the NCAA seeking to reclassify college football and basketball players as employees instead of student athletes.
The next step in the case is a hearing on Nov. 7, where the NLRB will argue that USC’s media policies violate federal labor law. The school’s handbook instructs athletes to “smile” and “be positive” during interviews and not to post anything that “would embarrass USC, your team, or your family” on social media.
A ruling in the NLRB’s favor would pave the way for some college athletes at private schools to unionize and collectively bargain for a share of media revenue or expanded health care benefits. Public schools are subject to state law as opposed to the NLRB, but they could also be impacted if the NLRB judge upholds the joint employer designation. While Democrats currently hold a 3-1 majority on the board (with one GOP vacancy), coming to a ruling can be a years-long process that is often followed by a lengthy appeals process.
“The conduct of USC, the Pac-12 Conference, and the NCAA, as joint employers, deprives their players of their statutory right to organize and to join together to improve their working and playing conditions if they wish to do so,” NLRB general counsel Jennifer Abruzzo said in a statement. “Our aim is to ensure that these players, as workers like any other, can fully and freely exercise their rights.”
Abruzzo first made her stance on this issue clear in September of 2021, when she released a memo stating that “certain” college athletes are statutory employees who deserve the right to unionize, among other protections. Back in 2017, the NLRB issued a memo stating that football players at high-level private universities were employees, but it declined to intervene in a specific case involving Northwestern University and the Trump administration withdrew the memo later that year.
“The complaint issued by the Region today appears to be driven by a political agenda and is the wrong way to help student-athletes succeed,” NCAA spokesperson Tim Buckley said. “Many student-athletes are earning real money in today’s world of college sports while also earning a college degree worth hundreds of thousands of dollars. Some within the NLRB seemingly would replace that system with one that a young adult could get fired from after a few bad games in the middle of the season, all while turning a blind eye to its impact on Title IX and international student-athletes, as well as the instability in college sports that would result by finding only basketball and football student-athletes at private schools are employees.”
The NLRB’s formal complaint is the latest legal challenge threatening the NCAA since successful lawsuits from Ed O’Bannon and Shawne Alston deemed the organization subject to ordinary antitrust scrutiny. Johnson v. NCAA, which is currently being reviewed by the Third Circuit, is also seeking employee status for college athletes. The worry from fans of non-revenue sports such as swimming is that their favorite teams could be on the chopping block if athletic department operating costs increase across the country.
“The impact of such a monumental change in the law would affect not just the football and basketball programs at USC targeted by the NLRB General Counsel, but the more than 20 different sports in the Conference that all operate under the same rules and academic principles,” the Pac-12 said in a statement. Notably, the USC is leaving the Pac-12 for the Big Ten along with UCLA in 2024.
The NCAA has tried to convince Congress to enact legislation defining college athletes as non-employees, but even with former Massachusetts governor Charlie Baker now leading the organization, that appears to be an unlikely escape route.
“Now that the complaint has finally been filed, the next step in the process is an actual hearing, where USC is looking forward to presenting the complete facts about its athletics programs,” a USC spokesperson said in a statement. “These facts, along with 75 years of precedent, establish that our student-athletes — including those on our football and basketball teams — are not employees.”
Another lawsuit, House v. NCAA, is looking for NIL backpay and broadcast revenue sharing totaling more than $1 billion.