On May 18, 2023, the National Labor Relations Board’s (NLRB) regional office in Los Angeles filed a complaint against the National Collegiate Athletic Association (NCAA), Pac-12 Conference, and the University of Southern California (USC), alleging that the three institutions have acted as joint employers and violated federal labor laws by failing to treat their student-athletes as employees. This complaint follows key decisions and mounting legal challenges from the U.S. Supreme Court, State legislatures, and advocacy groups across the country contesting the NCAA’s “amateurism” model that has largely prohibited student-athletes from receiving monetary compensation for their on-field athletic performance. 

The NLRB’s formal complaint follows the regional office’s announcement last December that it was considering filing such a complaint against the three organizations after a prominent advocacy group, the National College Players Association, filed an unfair labor practice charge in February 2022 on behalf of USC football and men’s and women’s basketball players (you can read more about those early developments in our previous alert here).  

The NLRB’s complaint alleges that the NCAA, Pac-12 Conference and USC are joint employers that have deliberately misclassified men’s and women’s basketball and football players as non-employee student-athletes in order to “intentionally deprive the Players of their rights” under the National Labor Relations Act, including the right to organize and form unions as employees. As a remedy, the NLRB’s General Counsel seeks an order requiring respondents to cease and desist from misclassifying the players as non-employee “student-athletes” and to “reclassify the players as employees rather than as ‘student-athletes’ in their files, including, but not limited to, their handbooks and rules, and notify all current players that they have done so.” 

Significantly, with the NLRB issuing a complaint against the NCAA, Pac-12 and USC as joint employers, a decision against them could potentially implicate college athletes at public institutions within the NCAA and Pac-12, though the scope of such a decision remains unclear at this time.  On June 1, 2023, the three institutions filed separate responses to the complaint, denying that they were joint employers and that they had violated the National Labor Relations Act. The NCAA, in particular, argued that the NLRB was overreaching beyond its jurisdiction, following from a 2015 decision in which the NLRB refused to rule on whether the Northwestern University football team could unionize. 

A hearing on the Board’s complaint is set before an administrative law judge for November 7, 2023.