The National Labor Relations Board’s Los Angeles Regional Office (LA Regional Office) decided last week that the University of Southern California, the Pac-12 Conference and the National Collegiate Athletic Association (NCAA) are violating federal labor law by failing to treat student basketball and football players as employees. This move sets the stage for student athletes to unionize and may have broader implications for members of the NCAA.
The LA Regional Office’s decision is not surprising given NLRB General Counsel Jennifer Abruzzo’s 2021 memo in which she wrote that scholarship athletes at academic institutions are employees who have rights to organize unions. Abruzzo also last year withdrew a proposed rule that would have exempted undergraduate and graduate student workers from the right to collectively bargain.
In her memo, Abruzzo declined to refer to the students as “student athletes,” explaining that the term was coined for the purpose of denying college athletes workplace protections. Instead, Abruzzo asserted that these athletes meet the broad definition of “employee” under the National Labor Relations Act. The memo announced that, in certain cases, Abruzzo would consider it a violation of the Act to misclassify such players as “student athletes” or to lead them to believe that they are not entitled to the Act’s protections. Further, because these athletes perform services for, and are subject to the control of, the NCAA and their colleges, Abruzzo said the NLRB will consider pursuing a joint employer theory of liability for violations of the Act by either entity.
Since the Board began exercising jurisdiction over private, nonprofit universities in 1970, it has changed positions on whether certain students qualify as “employees” under the Act. Most recently, in 2016, the Board held in Columbia University, 364 NLRB No. 90, that student teaching and research assistants are employees who have the right to collectively bargain under the Act.
Until now, though the Board has gone back and forth over the right of graduate students and other similarly situated students to collectively bargain, it has expressly declined to resolve the issue of whether college athletes are employees. In particular, in Northwestern University, 362 NLRB No. 167 (2015), the Board said that, as a matter of policy, it would not exercise jurisdiction over student athletes. In that case, the Board avoided deciding whether scholarship players at a private college were employees because the overwhelming majority of college athletes attend public colleges and universities, over which the NLRB does not have jurisdiction. The Northwestern Board also explained that the conditions under which college athletes play are generally set by the NCAA and the athletic conferences, and it would be difficult to achieve stable labor relations without bargaining on a wider level.
The LA Regional Office’s decision still has a ways to go before the NLRB issues a ruling. Absent a settlement, the LA Regional Office will likely issue a complaint resulting in a hearing before an administrative law judge. After the administrative law judge renders a decision, the losing party may appeal the decision to the Board or, if there is no appeal, the Board may affirm the judge’s decision.
It is worth noting that current Board Chairperson Lauren McFerran sat in the majority in the Columbia University and Northwestern University decisions. If the current Board agrees with the LA Regional Office and exercises jurisdiction over USC, the Pac-12 and/or the NCAA, it will change the dynamic between colleges and their student athletes. It also may have broader reach because it likely would impact the public universities and colleges that are also members of the conferences and NCAA.
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