Commentary
The National Labor Relations Board (NLRB) is mounting a renewed full-court press to ensure that college football and basketball players are deemed professional athletes so they can join unions. But those actions possess serious implications for employers in other field as well.
Importantly, the interpretation of joint-employer liability found in statements made by NLRB General Counsel Jennifer Abruzzo could extend beyond the field of college athletics because they signal an aggressive interpretation of joint liability, a policy that already is under general review by the board, say attorneys for the law firm of K&L Gates LLP.
In January, the Department of Labor (DOL) and NLRB signed a memorandum of understanding agreeing to work more closely together on joint employment and independent contractor misclassification issues. The Biden NLRB also already has made clear that it plans to address the joint employment issue, leaving behind the Trump-era board’s policy of restricting its definition and returning to the Obama board’s more expansive reading of federal labor law.
“Given the NLRB’s clear intention to expand the scope of protected activity, all employers (not just academic institutions) should exercise caution when deciding whether or not to discipline or curtail discussions concerning health and safety concerns (importantly as related to the COVID 19 pandemic) or social justice issues,” the K&L Gates attorneys warn.
Another ground-breaking implication of these college athletics cases involves the prospective expansion of the NLRB’s jurisdiction, which currently is limited to workers in the private sector, and generally excludes public employees. The lawyers point out that if a current California college athlete complaint succeeds that involves the University of Southern California (USC) and the University of California, Los Angeles (UCLA), it could extend the board’s reach beyond private employers to public entities for the first time due to the fact that both USC and UCLA are public universities.
In a September 2021 memo to NLRB staff, Abruzzo announced the board’s newest policy favoring union organizing of college football and basketball player. At that time, she raised eyebrows by her insisting to the staff that she was banning the term “student athlete” as a name she contended had been concocted by the National Collegiate Athletic Association (NCAA) solely with the deliberate intention to deceive.
“While Players at Academic Institutions [PAI] are commonly referred to as ‘student-athletes,’ I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections,” Abruzzo declared. So, from then on NLRB employees have been expected to refer to these college-level football, basketball and soccer players as “PAIs” in all verbal communications.
From Game to Profession
Citing a decision from the Obama-era NLRB that involved Northwestern University’s football players, Abruzzo says she believes players should be deemed employees in situations where:
• Athletes performed a service for the university and the NCAA (i.e., played football), and generated considerable profit and other benefits for the university.
• Athletes received significant compensation, including financial support for the cost of tuition, room and board, and stipends for other academic and personal expenses.
• NCAA controlled players’ terms and conditions of employment by establishing maximum practice and competition hours, rules concerning scholarship eligibility and minimum GPA requirements, and restrictions on the amounts of gifts that players may accept.
• The university controlled the “manner and means of the players’ work on the field and various facets of the players’ daily lives to ensure compliance with NCAA rules.”
It turns out that Abruzzo may be on firmer legal ground than she would have been before June 2021, when the U.S. Supreme Court rejected the NCAA’s antitrust defense that had been based on its assertion of “amateurism” in college sports. Since then, although players are not receiving salaries, they have obtained education-related benefits that previously had been denied them, such as receiving laptops and tutoring assistance, and participating in study-abroad programs.
Some of the implications of the Supreme Court’s decision are still in the process of being worked out. For example, in July of last year, the NCAA approved a “names, images or likeness” (NIL) policy allowing athletes to earn money through social media accounts (much like influencers), working in teaching camps or charging for lessons, and signing autographs, among other things.
In last September’s memo, Abruzzo told NLRB regional office staff that if universities and colleges continued to misclassify these players as student athletes, this would inevitably be considered an unfair labor practice (ULP) designed to prevent players from organizing—which is exactly what the board has now done.
Bolstered by the NLRB’s policy change, in February the National College Players Association (NCPA) filed just such a ULP complaint with the NLRB Los Angeles Regional Office against the NCAA, the Pac-12 Conference, USC and UCLA. If the NCPA petition is granted, it would go a long way towards creating a precedent for the rest of the country.
NCPA filed its complaint with the board after petitioning the Ninth Circuit Court of Appeals to decide that the NCAA Division-I men’s and women’s basketball and FBS football players should be recognized as university employees. A similar ULP charge by the College Basketball Players Association was lodged against the NCAA with the NLRB’s regional office in Indianapolis.
Around the same time, the NCPA was arguing in its case another federal appeals court—the Third Circuit—which already had agreed to hear NCPA’s appeal in a different case on the question of whether Division I student athletes can be seen as employees of their schools solely by virtue of their participation in interscholastic athletics.
“It is possible that the NCPA will file additional ULPs in other regions,” note attorneys for the law firm of McGuireWoods. “However, choosing schools within the Ninth Circuit [Court of Appeals] seems to be deliberate because it and federal district courts in California already have issued opinions favorable to college athletes.”
The K&L Gates attorneys predict that if this is what happens, DOL or other federal and state employment agencies also will adjust their guidances and define college players as employees when it comes to wage and hour laws, workplace health and safety laws, workers’ comp benefits, unemployment insurance, leave laws or anti-discrimination protections.
In a separate development, Senators Chris Murphy (D-Conn.) and Bernie Sanders (I-Vt.) have proposed the College Athlete Right to Organize Act, which would amend the National Labor Relations Act and grant student-athletes collective bargaining rights, regardless of any existing state law restrictions. A similar bill has been introduced in the House by Reps. Jamaal Bowman,(D-N.Y.); Andy Levin (D-Mich.); and Lori Trahan (D-Mass.).
