Some Student-Athletes, Once Again, Want to be Employees

 

On February 8, 2022, the National College Players Association (“NCPA”), an advocacy group for college athletes, filed unfair labor practice charges before the National Labor Relations Board (“NLRB”) against the National Collegiate Athletic Association (“NCAA”) and other heavyweights in collegiate athletics.  The NCPA alleged that the NCAA and others have misclassified student-athletes as amateurs instead of employees under the National Labor Relations Act (“NLRA”).

 

Background

The NLRA provides the rights to unionize and collective bargaining to “any employee.” The NLRA’s rules state that “any employee” means any person “who performs services for another” and is “subject to the other’s control or right of control.” However, the NCAA has long held that student-athletes are amateurs, meaning they do not qualify as “any employee.”

 

The NLBR previously had the opportunity to remedy this issue in a 2015 case involving Northwestern University but chose not to do so.  There, the NLRB reasoned that exercising jurisdiction over student-athletes at private educational institutions would not promote the NLRA’s goals given that the NCAA is dominated by public universities that fall outside the NLRA’s statutory scope.

 

However, the US Supreme Court opined on this topic in its June 2021 opinion, in NCAA v. Alston.  In Alston, current and former Division I athletes brought a class-action suit against the NCAA and several major athletic conferences.  Following its review, the US Supreme Court held that the NCAA’s restrictions on education-related compensation for student-athletes, which the NCAA defended based on its notion of amateurism in college athletics, violated the Sherman Act’s prohibition on undue restraints of trade.

 

Three months later, the NLRB’s General Counsel issued a memo asserting that student-athletes at private educational institutions are employees under the NLRA and thus entitled to the NLRA’s protections, notwithstanding the NLRB’s decision in the Northwestern case.  In doing so, the General Counsel reasoned that student-athletes perform a valuable service for the NCAA and their individual institutions; that they receive significant compensation in the form of tuition, room, board, and financial stipends; and that the NCAA and the athletes’ individual institutions control the terms and conditions of their “employment” by issuing various rules and regulations.

 

To that end, the General Counsel went searching for strong contenders and advised that “cases involving the misclassification of Players at Academic Institutions should be submitted” for review.

 

The NCPA Complaint

On February 8, the NCPA filed charges with the NLRB against the NCAA, the Pac-12 Conference, UCLA, and USC.  The NCPA alleges that the NCAA and other institutions have “repeatedly misclassified employees as ‘student-athlete’ nonemployees” to circumvent the NLRA.

 

The NCPA’s charges raise three issues concerning the status of student-athletes.

 

The first issue is whether Division I student-athletes at private educational institutions (which, for this case, is USC), are “employees” of their respective institutions within the meaning of the NRLA.  Coincidentally, the issue of whether student-athletes are “employees” is also currently being litigated under the Fair Labor Standards Act in a case in which a district court in the Eastern District of Pennsylvania.

 

Second, assuming that student-athletes are “employees” under the NLRA, the question is whether the NCAA (and major athletic conferences) are joint employers together with the athletes’ private educational institutions.

 

Third, the question of whether major athletic conferences qualify as joint employers even when some of their member schools are public educational institutions (which is UCLA here, which is a member of the PAC-12 conference).

 

In short, the NCPA’s filing provides a vehicle for the General Counsel to advance her position that college student-athletes are employees entitled to the rights to unionize and to engage in collective bargaining under the NLRA.  Assuming the General Counsel decides to issue a complaint in this matter, it will be tried before an administrative law judge, whose decision could then be appealed to the full NLRB.

 

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