Wednesday September 27, 2023

The NLRB Is Going After The NCAA’s Amateurism Model

  • The NLRB investigate a case over whether football and basketball players at USC should be able to collectively bargain.
  • The charge was brought by a college athlete advocacy group called the National College Players Association.
Richard Mackson-USA TODAY Sports
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In February, a college athlete advocacy organization called the National College Players Association filed a complaint with the National Labor Relations Board, alleging USC, UCLA, the Pac-12, and the NCAA all misclassify football and basketball players as “amateurs” when they should really be considered employees.

The NCPA just scored a significant win in the process.

The NLRB has decided to prosecute a complaint against USC, the Pac-12, and the NCAA, the NCPA said on Thursday. The parties will have an opportunity to settle — but if they don’t, the NLRB will bring a case against the three college sports entities. It will not, however, pursue a complaint against UCLA, which does not fall under the NLRB’s jurisdiction as a public school.

“Coaches, athletic directors, and conference commissioners are making millions of dollars while NCAA sports denies athletes fair compensation, breaks minimum wage and overtime laws, and avoids workers compensation while hazardous workplace conditions remain unchecked,” NCPA executive director Ramogi Huma said in a statement. “We are working to make sure college athletes are treated fairly in both the education and business aspects of college sports.”

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The decision was based on findings from the regional director in the NLRB’s Los Angeles regional office.

“The Region’s determination that the unfair labor practices have merit is based on a determination that USC, the Pac-12 Conference, and the NCAA, as joint employers, have maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protections under our law,” NLRB General Counsel Jennifer Abruzzo said in a statement to Front Office Sports. 

“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.  Our aim is to ensure that these players can fully and freely exercise their rights.”

If the NCPA wins, Division I FBS football and basketball players at private schools across the country would be deemed employees. They’d win the right to organize collective bargaining and earn other benefits like workers compensation — which the NCAA has evaded providing for years through the creation of the phrase “student-athlete.” (The issue is one of the main ones the new NCAA president, Massachusetts Gov. Charlie Baker, will face when his tenure begins in March 2023.)

USC and the NCAA don’t appear intimidated — and don’t sound like they plan on settling.

  • USC said: “This matter remains at an initial stage, and 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.”
  • An NCAA statement read in part: “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 Pac-12 declined to comment.

It’s unclear whether the complaint will prevail, however. 

In 2014, Northwestern football players tried to form an official player’s union. Ultimately, their attempt was struck down by the NLRB — though it was dismissed on the technicality related to jurisdiction. Since the NLRB only presides over the private sector, it didn’t want to create a situation where private school athletes could unionize, but public school athletes couldn’t.

However, the NLRB has a very athlete-friendly general counsel in Jennifer Abruzzo, appointed by President Joe Biden. In a memo released in 2021, Abruzzo stated she believed athletes were illegally classified as amateurs rather than employees in many cases and suggested she would argue future cases with that opinion in mind. 

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