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College Athlete Pay Complaints Tee Up Case for U.S. Labor Board

Feb. 9, 2022, 5:52 PM

An advocacy group for college athletes is asking the federal labor board to rule that student players are employees, setting up a battle over the future of big-money athletics on campuses.

In filing unfair labor practice charges with the National Labor Relations Board Tuesday, the National College Players Association accused a quartet of heavy-hitters in collegiate athletics of misclassifying athletes and suppressing their right to speak out about compensation and working conditions. The charges were filed against the National Collegiate Athletic Association, a nonprofit organization that regulates student athletes, along with the Pacific-12 Conference, the University of California-Los Angeles, and the University of Southern California.

The complaints give the NLRB’s hard-charging general counsel, Jennifer Abruzzo, a case she can present to the agency’s five-member panel, creating an opportunity for the Democratic-led body to rule that student athletes are entitled to collective bargaining rights. The general counsel prosecutes cases before the board, and Abruzzo has shown interest in the student-athlete issue.

While the NLRB only has jurisdiction over private employers, the inclusion of a public university—UCLA—gives Abruzzo the chance to assert that the NCAA and PAC-12 are joint employers of athletes at taxpayer-funded colleges.

National College Players Association Executive Director Ramogi Huma said in an interview the group “followed the lead” of a memo Abruzzo issued in September 2021 in which she signaled interest in pursuing cases that could result in the board granting student athletes union rights as well as tackling the more expansive question of joint employment in college athletics.

“What would give the NLRB jurisdiction is if they found that the PAC-12 and/or the NCAA is an employer, a joint employer, of UCLA athletes,” Huma said.

NLRB General Counsel Jennifer Abruzzo testifies during her confirmation hearing last year.
Photographer: Al Drago/Bloomberg

‘There’s a Blueprint’

Supporters of student players say that athletic conferences and associations could well be considered private employers under NLRB’s purview. In her September memo, Abruzzo said she would consider charges against athletic conferences and associations “even if some member schools are state institutions.”

The NCAA and PAC-12 declined to comment. In a statement, a USC spokeswoman said the university is reviewing the complaint against it and that sports “is part of the comprehensive set of opportunities we offer students as part of their educational experience.” UCLA didn’t immediately respond to a request for comment.

The NCAA and universities previously have insisted that college athletes are primarily students and compete as amateurs, and thus shouldn’t be compensated as professionals.

The complaints were first reported by The Associated Press. The allegations must first come before an NLRB regional officer, who serves under Abruzzo. The regional officer will then decide whether to bring them before an administrative law judge. Any decision could then be appealed to the full board in Washington.

Huma said the complaints focus on high-revenue sports where athletes don’t share in profits, the NCAA Division I Football Bowl Subdivision, which encompasses the top 130 football schools, and men’s and women’s basketball.

The college sports establishment walked away with a win in 2015 when the NLRB unanimously dismissed a union petition from Northwestern University football players, brought through Huma’s group.

But the national mood may be different now. The U.S. Supreme Court signaled last year it was open to the idea of allowing student-athlete compensation, issuing a unanimous ruling in NCAA v. Alston that held the organization can’t preempt education-related benefits for student athletes, such as computers, internships, and tutoring.

In a widely read concurring opinion, Justice Brett Kavanaugh wrote that the NCAA’s business model “would be flatly illegal in almost any other industry in America.”

“In a sense this is novel, in a sense this is not,” Huma said. “There’s a blueprint, you know. The only thing standing in the way is NCAA’s resistance to athletes, employee status, and unionization.”

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com