National Labor Relations Board files complaint for unfair labor practices vs. NCAA, Pac-12, USC

May 18, 2023, 9:19 PM

A legal battle that would open the door for some college athletes to form unions took an expected, yet significant step forward Thursday when the National Labor Relations Board issued a complaint against the NCAA, the Pac-12 and USC for unfair labor practices.

Those three parties will argue against lawyers from the NLRB in a hearing scheduled for Nov. 7. The hearing is the next step in one of several mounting challenges to the NCAA's fundamental belief that college athletes are not employees and thus should not be paid directly for their athletic performance.

"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," said NLRB general counsel Jennifer Abruzzo. "Our aim is to ensure that these players, as workers like any other, can fully and freely exercise their rights."

If athletes -- this complaint applies only to football, men's basketball and women's basketball players -- are viewed as employees under the National Labor Relations Act, they would have the ability to organize and collectively bargain against schools for a larger share of the billions of dollars of revenue generated by college sports each year as well as other workplace protections.

The NCAA has been firm in its stance that college athletes should not be employees of their schools. Several leaders from the association, conference and schools have lobbied Congress in recent months to create a federal law that defines college athletes as non-employees.

The NCAA believes making athletes into employees could lead to a system where athletes could be fired for poor performance and create complications for international athletes as well Title IX compliance, according to the organization's senior VP of external affairs, Tim Buckley. He said in a statement Thursday that the NCAA believes its rules need to be updated, but that employee status was not the right solution.

"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," Buckley said. "...The Association believes student-athletes, school leaders and the people's representatives in Congress are best fit to make such wide-ranging changes to college sports."

If the administrative law judge who oversees November's hearing finds that the NCAA, Pac-12 and USC have violated labor practices, the decision would almost certainly lead to an appeal that would require the NLRB's board to decide if football and basketball players qualify as employees. Because of the nature of the complaint, the board would not be able to opt out of issuing an opinion on athletes' employee status as it did in 2015, when Northwestern football players sought the right to form a union.

The complaint against USC, Pac-12 and the NCAA was filed in February 2022 by the National College Players Association, an advocacy group that was involved in pushing states to write the legislation that forced the NCAA to change its policies on players making money from name, image and likeness deals.

"While disappointing, this complaint is neither new nor surprising; it simply perpetuates a position that the National Labor Relations Board erroneously staked out many months ago, and which would significantly undermine the educational experiences of our student-athletes," USC said in a statement.

NCPA founder Ramogi Huma said Thursday that they believe this process will prove athletes are entitled to all the rights and protections of employees in America.

"FBS football players and NCAA Division I men's and women's basketball players, the majority of whom are Black, are exploited physically and economically by NCAA sports," Huma said in a statement. "One of the reasons this injustice continues to plague all athletes in these sports nationwide is because NCAA sports has denied them rights under labor law."

The decision by Abruzzo's staff to pursue all three groups as joint employers creates the possibility that all college athletes could be granted the right to unionize as a result of this case. The NLRB doesn't have jurisdiction over public universities, so the courts would need to determine that conferences and the NCAA act as an employer in order for their decision to apply to all schools competing in college sports.