The National Labor Relations Board’s (NLRB) Los Angeles Regional Director has determined that the National College Players Association’s (NCPA) Unfair Labor Practice charge against the University of Southern California (USC) has enough merit to move forward. In February 2022, the NCPA filed the Unfair Labor Practice charge against USC, the Pac-12 Conference, and the NCAA, under a joint employer theory. The charge also initially included UCLA—a public institution—but that part of the charge has since been dropped. Notably, the NLRB does not have jurisdiction over government-operated entities, like state colleges and universities. The NCPA’s charge claims that USC, the Pac-12, and the NCAA have misclassified USC football and basketball players as “student-athletes” when they are statutory employees under the National Labor Relations Act (NLRA). In finding that these claims have merit, the NLRB’s Los Angeles Regional Director will pursue charges against the three entities.
Unfair Labor Practice Case Procedure and Potential Appeals
Following briefings and a trial, an administrative law judge will consider the charges and the arguments of all of the parties, and determine if USC, the Pac-12, and the NCAA have engaged in unlawful behavior. That decision could (and likely would) be appealed to the five-Member NLRB, to review the administrative law judge’s decision and determine whether or not an Unfair Labor Practice has occurred.
The Board’s decision can then be appealed to one of the U.S. Courts of Appeals for further review, upon a claim by either party that the NLRB has misinterpreted the NLRA’s provisions. The U.S. Supreme Court may choose to review the Court of Appeals’ decision, if any of the parties petition the Court for certiorari. It may ultimately be years before we have the final resolution of the case. This flowchart provides more detail of the complexity and procedure in an Unfair Labor Practice case.
Likelihood of a Finding that the Football and Basketball Players are Employees
In determining whether or not a particular group of workers are statutory employees under the NLRA, the NLRB will look at the nature of the relationship between the employer and employees. Generally, the more control that an employer has, the more likely that the Board will find that they are employees. Conversely, the less control that an employer has, the more likely that the Board will find that they are independent contractors. The NLRB is currently considering a case in which it may adjust the standards for determining employee vs. independent contractor status (after doing so in 2014 and then again in 2019). As the law currently stands, the NLRB will consider a non-exhaustive list of factors from the common law agency test, including employer control, skill required to complete the work, and methods of compensation.
A promising sign for the USC football and basketball players is the NLRB’s 2016 Columbia University decision concerning teaching and research student assistants. In that case, the Board determined that the students were statutory employees because they performed services for the university for which they were compensated, even though the primary reason for their relationship was the students’ education. The NLRB’s decision in the Columbia case is more recent than its decision to “punt” on deciding the employment status of the Northwestern football players in 2015. In the Northwestern University case, the Board declined jurisdiction because of the impact a finding of employment status would have over college athletics as a whole, primarily at public institutions.
The Board’s concerns from Northwestern still exist today, although its decision to classify the Columbia graduate student assistants as statutory employees may prove helpful for the USC football and basketball players. Given the unique relationship between the student-athletes and USC (compared to more traditional employer-employee relationships), it is difficult to predict how the NLRB may ultimately decide their employment status. Considering the developments within college athletics since the NLRB’s 2015 Northwestern decision—namely, the expansion of the College Football Playoff and the start of the NIL era—the tide may be on the athletes’ side.
The Joint Employer Theory
Although the most direct relationship with the USC football and basketball players is with USC itself, the NCPA has included the Pac-12 and NCAA in the charge as joint employers. This is likely an effort to subject conferences and the NCAA to the jurisdiction of the NLRB—even though many (and in some cases most) of their member institutions are public schools which would not be covered by the NLRA.
The Pac-12 and NCAA would be considered joint employers of USC’s football and basketball players if the NLRB determines that: (1) the players are employees of USC; (2) USC, the Pac-12, and the NCAA share or codetermine the players’ essential terms and conditions of employment; and (3) the Pac-12 and NCAA possess and exercise such substantial direct and immediate control over one or more essential terms and conditions of employment of USC’s football and basketball players as would warrant a finding that the Pac-12 and NCAA meaningfully affect matters relating to the employment relationship. The joint employment factors ultimately hinge on the alleged joint employer’s direct control over the employees. The NLRB could also find that only one of either the Pac-12 or the NCAA are joint employers, but not both. Moreover, without a finding that USC is the athletes’ direct employer, neither could be liable as a joint employer.
The Unfair Labor Practice charge against USC, the Pac-12, and the NCAA has a long road ahead, and could take years to be resolved. Should the USC football and basketball players ultimately be deemed statutory employees, they would have the opportunity to unionize and collectively bargain over the terms and conditions of their employment.
