By Gregg E. Clifton and Christina Stylianou, of Lewis Brisbois
The National Labor Relations Board’s (NLRB) effort to reclassify student-athletes as employees continues to move forward. In an anticipated next step, the NLRB’s Regional Director in Los Angeles has issued a formal complaint alleging that the football and men’s and women’s basketball players at the University of Southern California (USC) are actually employees of the school, the Pac-12 conference, and the NCAA, pursuant to the National Labor Relations Act (NLRA). The issuance of the complaint has resulted in the scheduling of a hearing before an administrative law judge on November 7, 2023.
The issuance of the complaint was anticipated, and follows the path outlined by NLRB General Counsel Jennifer Abruzzo in her September 29, 2021 memorandum. At that time, Abruzzo, despite lacking unilateral authority to modify the NLRA or Board law, foreshadowed her goal when she asserted that student-athletes were misclassified, and that the “broad language of Section 2(3) of the Act and the policies underlying the NLRA, Board Law and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees.”
Despite Abruzzo’s effort to stimulate student-athletes to file unfair labor practices to engage the jurisdiction of the NLRB and support the NLRB’s effort to change the legal standing of college athletes to become statutory employees, she did not receive support from any student-athletes. Rather, two individuals, Michael Hsu, co-founder of the College Basketball Players Association (CBPA), and Ramogi Huma, Executive Director of the National College Players Association, filed unfair labor practice charges in an effort to stimulate the NLRB’s efforts by creating a fact scenario that would enable the NLRB to move forward to change the legal standing of student-athletes to become statutory employees.
Hsu filed an unfair labor practice charge (Case No. 25-CA-286101) with Region 25 of the NLRB in Indianapolis, accusing the National Collegiate Athletic Association (NCAA) of violating Sec. 8(a)(1) of the NLRA by classifying college athletes as student-athletes.
Hsu’s efforts were followed in February 2022, when Huma and the NCPA filed an unfair labor practice charge in Los Angeles with the NLRB against USC, the Pac-12, and the NCAA on behalf of football and basketball athletes at the University of Southern California. In the charge, the NCPA argued that college athletes should be considered employees and not student-athletes.
On December 15, 2022, the NLRB’s Los Angeles Region agreed to change the legal standing of college athletes to become statutory employees. At that time, NLRB General Counsel Jennifer Abruzzo said in a statement that USC, the Pac-12, and the NCAA have together “maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protection under our law.”
Interestingly, despite both Hsu and Huma lacking apparent standing as non-student-athletes, they were both able to file unfair labor practices because the NLRA does not require standing to file a charge. The NLRB’s regulations provide that “any person may file a charge alleging that someone has engaged in . . . an unfair labor practice.” This process is authorized because the filing of a charge simply gives the NLRB General Counsel notice that a possible violation of the NLRA may have occurred and should be investigated. Such notice is essential because the General Counsel is legally precluded from searching for alleged NLRA violations on its own initiative. In fact, even if the General Counsel were to witness a clear violation of the Act, absent a pending charge, the office would lack the authority to act.
Huma’s filing has now been used as the basis for the NLRB’s formal complaint seeking an administrative law judge to find USC, the Pac-12 and the NCAA to be joint employers of the student-athletes and to issue an order requiring USC, the Pac-12 and the NCAA to:
- Cease and desist from misclassifying the players as non-employee “student-athletes”
- Reclassify the players as employees rather than as “student-athletes” in their files, including, but not limited to, their handbooks and rules
The complaint asserts many of the long-expressed arguments that student-athletes are under the control of the joint employers and perform actual labor consistent with employee status. As a result, the NLRB believes that student-athletes are actually employees who are being deprived of their individual and collective rights guaranteed by the NLRA.
Summarizing her position, Abruzzo stated, “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.” She furthered explained, “Our aim is to ensure that these players, as workers like any other, can fully and freely exercise their rights.”
The NLRB’s effort to seek an order finding USC as well as the Pac-12 and the NCAA as joint employers and to reclassify student-athletes as employees of all three joint employers is significant. As reported by nationally recognized sports law Professor Gabe Feldman, while the NLRA does not apply to public institutions, a finding of joint employer status of the student-athletes among all three could result in the National Labor Relations Act applying to both private and public institutions.
In response to the issuance of the complaint, NCAA Vice President Tim Buckley stated, “The complaint…appears to be driven by a political agenda and is the wrong way to help student-athletes succeed.”
While November 7 is scheduled to start the formal legal process with a hearing, the Administrative Law Judge decision arising from that hearing can be appealed to the full Labor Board in Washington D.C. and to the Federal Court of Appeals.
Christina Stylianou
