Bloomberg Law
Dec. 16, 2022, 1:49 AM

NCAA Found to Have Violated Labor Rights of Student Athletes (3)

Josh Eidelson
Josh Eidelson
Bloomberg News

The US National Labor Relations Board’s general counsel office has determined for the first time that the National Collegiate Athletic Association is violating the law by failing to treat student basketball and football players as employees, opening a potential path to let them unionize.

Prosecutors for the federal agency reached the same conclusion about the Pac-12 Conference and the University of Southern California, that each was legally an employer of the athletes, NLRB press secretary Kayla Blado said Thursday. Absent a settlement, the NLRB’s Los Angeles regional director will issue a complaint against the organizations on behalf of the labor board’s general counsel, she wrote in an email.

“Gaining employee status and the right to organize is an important part in ending NCAA sports’ business practices that illegally exploit college athletes’ labor,” said Ramogi Huma, the executive director of the National College Players Association, the advocacy group that brought the case to the NLRB. “We are working to make sure college athletes are treated fairly in both the education and business aspects of college sports,” Huma said in a statement.

The NCAA said that contrary to what the NLRB claims, “college athletes are not employees of the NCAA, regardless of sport or division.”

“The NCAA’s commitment is to student-athletes, and it will continue to vigorously defend any attempts to divide them based on arbitrary standards, as it demeans the hard work and sacrifice of all who participate in college sports,” the organization said in a statement.

USC said no final ruling will be issued until there has been a full hearing “based on all the relevant facts and law.”

“We look forward to presenting those facts, along with 75 years of favorable legal precedent, at the appropriate time,” the university said in a statement.

A Pac-12 Conference spokesperson declined to comment.

The NCAA’s treatment of players, who play sports that generate billions of dollars in revenue, has come under intensifying criticism in recent years. The US Supreme Court last year ruled unanimously against the NCAA in a case student athletes brought against the organization to allow them to profit from their appearance and performance.

Who’s An Employer?

The college athletes’ case also comes amid broader controversy about who is an employee, and who is an employer, under US law. Under former President Donald Trump, the general counsel’s office of the NLRB deemed Uber Technologies Inc. drivers not to be employees covered by the law, and abandoned an Obama-era effort to prove that McDonald’s Corp. was legally an employer of workers at its franchised stores.

The case could lead to a watershed ruling by NLRB members in Washington, where Democrats with pro-labor backgrounds now hold a majority, ordering the college organizations to stop deeming their players mere “student-athletes,” and opening the door for some to petition to unionize and collectively bargain.

“This kind of misclassification deprives these players of their statutory right to organize and to join together to improve their working/playing conditions if they wish to do so,” the NLRB’s general counsel Jennifer Abruzzo said in an emailed statement. “Our aim is to ensure that these players can fully and freely exercise their rights.”

William B. Gould, an emeritus professor at Stanford Law School, said the determination was welcome and overdue. “The subordinate treatment of college players and their exclusion from big business university revenue is a scandal and misapplication of the law,” said Gould, a former chair of the NLRB.

Right to Organize

The NLRB enforces US law protecting the right of private sector employees to organize and protest, and its process for investigating claims can include evaluating whether workers are employees even if the company they work for claims they are not.

Complaints issued by NLRB prosecutors are heard by agency judges, whose rulings can be appealed to the NLRB members in Washington, and then to federal court. The agency has the authority to order employers to change illegal policies, though not to fine them punitive damages.

In a 2015 case, NLRB members rejected a request to hold a unionization vote among Northwestern University’s football players, saying that doing so wouldn’t advance the purposes of US labor law. But Abruzzo, a Joe Biden appointee, last year issued a memo stating her view that at least some college athletes are in fact employees, thus telling them they’re excluded from labor law would itself be illegal.

“Things have changed” since 2015, Abruzzo said in an interview last year. The Supreme Court, she said, recognized that “this is not amateurism. This is a huge profit-making industry.”

(Updates with NCAA and USC comments.)

--With assistance from Robert Burnson and Christopher Palmeri.

To contact the reporter on this story:
Josh Eidelson in Palo Alto at

To contact the editors responsible for this story:
Craig Gordon at

Steve Stroth, Peter Blumberg

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