Are Revenue Generating NCAA Student-Athletes Employees? California NLRB Office Says YES.

CDF Labor Law LLP

Last week, Region 31 of the National Labor Relations Board, based in Los Angeles, filed a complaint (Case No. 31-CA-290326) alleging that the University of Southern California (USC), the Pac 12 (Pac-12) Conference and the NCAA violate Section 7 of the National Labor Relations Act because their male football and basketball student-athletes, and female basketball student-athletes, are restricted under typical school rules on how they can interact with the media and how they can manage their social media accounts. The Region alleges that these rules violate their rights to engage in protected concerted activities because the student athletes are employees (if the student-athletes are not employees, the NLRB would not have jurisdiction). The complaint expressly alleges: “At all material times, the Players have been and are employees within the meaning of Section 2(3) of the Act.”  

None of this should come as a big surprise. In September 2021, NLRB General Counsel Jennifer Abruzzo issued NLRB Memorandum GC 21-08, wherein she declared that “where appropriate, I will allege that misclassifying such employees as mere “student-athletes” and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the Act.” It is also no surprise that the NLRB chose California to test its theory, given that the Ninth Circuit, despite a swing towards the right during the Trump administration, remains one of the most pro-employee/pro-union Circuits in the nation. Memorandum GC 21-08 outlines the NLRB’s position and we can expect the arguments set forth in that Memorandum to outline Region 31’s case against USC and the Pac-12.  

College athletics have already been deeply influenced by recent legal proceedings. Recruiting and the right to make money as a college athlete was changed drastically following the United States Supreme Court’s 2021 ruling in NCAA v. Alston on the issue of Name, Image and Likeness. Now, the NLRB is making moves to try to effect further change.  

NCAA schools, athletic departments, athletes, coaches, and all those that follow college athletics should pay close attention to this case and the NLRB’s actions in this area. At this point, all we have is some allegations from Region 31, but it remains unclear how this push by the NLRB to make college athletes in revenue-generating sports into employees will play out. Stay tuned. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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