Key Takeaways:

• The General Counsel of the National Labor Relations Board (“NLRB” or the “Board”) has instructed regional prosecutors to pursue unfair labor claims against University of Southern California, the Pac-12 Conference, and the National Conference Athletic Association (“NCAA”) related to their treatment of student athletes.
• The General Counsel’s decision to aid student-athletes positions the dispute for a significant ruling for universities, their athletes, athletic conferences they participate in, and the NCAA. 

Last week, NLRB General Counsel Jennifer Abruzzo joined the agency’s regional prosecutors in concluding that some NCAA student athletes are employees, instructing the Board’s regional prosecutors to pursue unfair labor claims against University of Southern California, the Pac-12 Conference, and the NCAA. The decision marks a significant step forward in the National College Players Association’s effort to establish that NCAA athletes are employees under federal labor law.

The General Counsel’s action means that the NLRB’s Los Angeles Region will join the National College Players Association in arguing before an administrative law judge that college football and men’s and women’s basketball players at the University of Southern California are employees of their school, their conference, and the NCAA. Although a decision on the issue will not be reached for some time, and will likely be met with an appeal by either party, this step by the NLRB is significant for student-athletes seeking to unionize.

This move was not unexpected. In September 2021, Abruzzo made waves when she issued a memorandum to NLRB field offices and the public outlining her view that some athletes qualify as employees under the National Labor Relations Act.

The NLRB is not the only place where the status of athletes as employees is being considered. A federal class action filed in the Eastern District of Pennsylvania claims that student athletes should be recognized as employees of their schools and the NCAA, and the Third Circuit is actively considering the issue. And last year, Democrats in the U.S. House and Senate introduced bills seeking to recognize college athletes’ rights as employees to organize and collectively bargain. In light of this increased activity on legislative, judicial, and administrative fronts, organizations involved in collegiate athletics should actively monitor this issue, as there are several avenues through which student athletes could gain status as employees.