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In response to an unfair labor practice complaint filed by the National College Players Association (NCPA) last year, the National Labor Relations Board (NLRB) in Los Angeles determined on December 15 that by not designating student athletes as employees, the National Collegiate Athletic Association (NCAA), the Pac-12 Conference, and the University of Southern California are infringing on students’ rights to organize. The NLRB’s regional director in Los Angeles found that the athletes should be classified as employees.

NLRB General Counsel Jennifer Abruzzo issued a statement:

“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.”

Abruzzo issued an opinion in September 2021 stating that athletes on college teams should be considered employees. But until there was a complaint filed on which the agency could rule, that opinion did not change the status of the athletes.

Now that the NLRB has determined the complaint has merit, USC, the Pac-12, and the NCAA will have an opportunity to negotiate protections for the athletes with the NCPA. If the dispute cannot be resolved between the parties, the NLRB will issue a complaint and the matter will go to a hearing with an administrative law judge who could order remedies.

This case is at an early stage. Any path to unionization of student athletes at USC or any college or university is unclear and potentially long. Furthermore, the NLRB’s authority is limited to labor relations in the private sector; athletics programs at public institutions are outside of its authority.

It’s worth noting that although it was limited in scope, the Supreme Court’s June 2021 ruling finding that the NCAA’s restrictions on institution-provided non-cash education benefits for student-athletes is a violation of antitrust laws opened the door for compensation for student athletes.

The NCPA previously had tried to unionize football players at Northwestern University but was unsuccessful in getting the NLRB to rule on whether the athletes should be considered employees at that school.

Contact

Mary Bachinger

Director, Tax Policy

202.861.2581


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