Southern California, NCAA, Pac-12 face complaint from National Labor Relations Board

The National Labor Relations Board’s Los Angeles office on Thursday issued a complaint against the NCAA, the Pac-12 Conference and the University of Southern California, alleging they have unlawfully misclassified college athletes as “student-athletes” rather than employees.

The action — which applies to athletes in football, men's basketball and women's basketball — means that the NCAA, Pac-12 and USC will face a hearing before an administrative law judge on Nov. 7.

At that hearing, NLRB’s general counsel Jennifer Abruzzo will be seeking an order requiring those three entities to “reclassify the Players as employees rather than as ‘student-athletes’ in their files, including, but not limited to, their handbooks and rules, and notify all current Players that they have done so,” according to the complaint, which was issued under the National Labor Relations Act.

Abruzzo also will seek “all other relief as may be just and proper to remedy the unfair labor practices alleged, ” the complaint said.

A statement from NLRB spokesperson Kayla Blado said the administrative law judge can order “make-whole” remedies. “Make-whole” relief, according to the U.S. Department of Labor’s website, “means simply that the contractor restores the victim of discrimination to the position, both economically and in terms of status, that he or she would have occupied had the discrimination not occurred.”

This means that the NCAA, Pac-12 and USC could be subject to monetary damages. However, the process promises to be lengthy. The ruling of an administrative law judge can be appealed to the full National Labor Relations Board, and a board decision can be appealed in federal court.

Thursday's complaint alleges that the NCAA, Pac-12 and USC have been joint employers of the athletes because the NCAA and Pac-12 had control over the athletes' working conditions and "administered a common labor policy" with USC regarding those conditions. As an example, the complaint cited excerpts from the USC athletics department's Student-Athlete Handbook and its Social Media Policy & Guidelines for Student Athletes, which set a variety of rules that athletes must follow.

The joint-employer approach is significant because it could result in the case ultimately applying not only to athletes at private schools — which are subject to the National Labor Relations Act (NLRA) — but also to athletes at public schools, said Gabe Feldman, director of the Tulane Sports Law Program and Tulane University's associate provost for NCAA compliance.

"What the joint-employer theory does is it eliminates the public-private distinction, and it makes every college athlete covered under the NLRA," Feldman said. "We are potentially one step closer to college athletes having the right to unionize and collectively bargain over their wages, hours and other conditions of employment. …That can't be overstated."

A college-athlete unionizaton effort occurred in 2014 and ’15 with football players at Northwestern University, but that ended when the National Labor Relations Board (NLRB) unanimously decided in August 2015 not to accept jurisdiction over the matter. At that time, it said that because the board has no jurisdiction over public schools, addressing the Northwestern effort would run counter to the National Labor Relations Act’s charge that the board create stable and predictable labor environments in various industries.

Thursday’s complaint came just hours after the California state Assembly’s appropriations committee passed a bill that would create the possibility of revenue sharing for college athletes in the state, as well as an array of other benefits and protections that would be overseen by a new state oversight/regulatory panel. The bill now goes to the Assembly floor, which must approve the measure no later than June 2.

The NLRB matter rose from a complaint filed in February 2022 by the National College Players Association, a group that advocates on behalf of college athletes. However, the stage for that complaint was set in September 2021, when Abruzzo issued a memorandum that said she views college athletes as employees of their schools under the National Labor Relations Act.

At that time, Abruzzo said in a statement accompanying her memo: College athletes “perform services for institutions in return for compensation and (are) subject to their control.

"Thus, the broad language of  … the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain (college athletes) are statutory employees, who have the right to act collectively to improve their terms and conditions of employment."

National College Players Association executive director Ramogi Huma said in a statement Thursday: “FBS football players and NCAA Division I men’s and women’s basketball players, the majority of whom are Black, are exploited physically and economically by NCAA sports. One of the reasons this injustice continues to plague all athletes in these sports nationwide is because NCAA sports has denied them rights under labor law. This process will prove that these athletes are employees under labor law and are entitled to all rights and protections afforded to other employees in America."