In the most important step toward unionization for college athletes to date, the National Labor Relations Board on Thursday filed an unfair labor practices complaint against USC, the Pac-12 and the NCAA asking that athletes at the school be classified as employees .
A hearing was held in November before an administrative judge in a case that could take years to decide. The suit calls on the parties to “stop misclassifying the players as ‘student-athletes’ who are not employees.” It further requests that those athletes be reclassified as “employees” in “handbooks and rules”.
The complaint comes on the heels of a February 2022 complaint from the National College Players Association (NCPA), which filed suit for unfair labor practices. A formal complaint means the NLRB investigated the charges, but failed to settle negotiations.
A complaint was largely expected after NLRB general counsel Jennifer Abruzzo issued a memo in September 2021 explaining.
“It’s important because it brings us one step closer to the college athletes association,” Gabe Feldman, a Tulane law professor and one of the leading voices nationally in sports law, said of the move. “It’s important because it suggests that the [ruling] would apply not only to private schools, but also to public schools. Conferences and the NCAA would be [athletes’] joint employers.”
A union effort eight years ago by Northwest football players, only for athletes who went to private schools. This is a much broader issue as the Pac-12 and NCAA are labeled as those joint employers. Employee status could potentially spread through the Pac-12 and beyond as USC moves to the Big Ten before the 2024 season.
The indictment is another blow to the very essence of the collegiate model. The union is already dealing with two major lawsuits over athlete compensation — House against NCAA And Johnson vs. NCAA. A pending law in California would give athletes revenue-sharing privileges. NCAA President Charlie Baker and FBS Commissioners have continually lobbied for a federal NIL bill on Capitol Hill.
“Because the impending decisions are within [those cases]this only increases the likelihood that an outside force is going to change college athletics,” Feldman said. “But it also strengthens the NCAA’s argument [that it] needs Congress to intervene.”
As part of its evidence, the NLRB displayed USC’s social media policies from the school’s student-athlete handbook. In part it reads:
Because the Internet is open to everyone, it is recommended that student-athletes … do not post any information – including photos and text – and/or join “groups” that do not promote positive behavior. . . Inappropriate language, behavior or messages, as well as messages that violate NCAA rules, may result in repercussions from the USC athletic department.
“Ordinary students are not subject to that kind of policy. This is about the ‘control’ issue by schools over college athletes,” said Michael Hsu, an athlete’s rights advocate and former trustee of the University of Minnesota.
In 2021, Hsu filed a misclassification suit with the NLRB against the NCAA. That charge was stayed while the NLRB handled the NCPA charge. The NCPA charge was more limited as it specifically included USC.
The USC has until June 1 to respond. According to Feldman, the case could eventually go on appeal all the way to the Supreme Court.