NLRB hearing continues weighing consequential athlete employee question this week

The industry’s most consequential question – are college athletes employees – will be under an ever-brightening spotlight the next two weeks as the National Labor Relations Board trial involving USC, the Pac-12 Conference and the NCAA resumes in Los Angeles.

Inside an NLRB regional office, Administrative Law Judge Eleanor Laws is presiding over an all-important case that alleges the three charged parties are joint employees of USC’s football and men’s and women’s basketball players.

They are alleged to have misclassified those athletes as student-athletes rather than employees and maintained certain overbroad rules in the USC Student-Athlete Handbook.

The trial could also continue Feb. 26-29, if necessary. With the likelihood of appeals, the entire process could take years.

What’s at stake is enormous.

Employee model would transform college sports

An employee model would transform college sports in ways both known and unknown. It could usher in player unionization and a revenue-sharing model. Opponents claim it could result in athletes being fired and prompt many universities ill-equipped financially for such a model to cut non-revenue sports.

At Thursday’s NIL-related Congressional hearing, when UCLA quarterback Chase Griffin was asked about potentially being fired in an employment model, he said: “That’s not really up to the athletes. That’s up to the NLRB. But based on the time, effort and hours, we operate as employees currently.”

The National Labor Relations Act applies to private instructions. But because the Pac-12 and NCAA are charged with being joint employees, the outcome could potentially open the door for athletes at public universities to be deemed employees of their conference or the NCAA.

NCAA President Charlie Baker remains laser-focused on trying to secure a federal reform bill that grants the association limited antitrust protection and codifies that athletes are not employees.

NLRB trial not only case impacting college sports

By all accounts, that pursuit remains a steep climb.

Absent Congressional intervention, legal experts believe at least some athletes will ultimately be deemed employees. At issue is how much, if any, control schools exercise over athletes – an element NLRB General Counsel Jennifer Abruzzo referenced in her headline-making September 2021 memo.

“Players at academic Institutions perform services for institutions in return for compensation and subject to their control,” Abruzzo wrote. “Thus … policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain players at academic Institutions are statutory employees who have the right to act collectively to improve their terms and conditions of employment.”

There are other ongoing proceedings on the employment front.

A Boston-based NLRB regional director is weighing the question of whether Dartmouth men’s basketball players are employees and can conduct a union election. Additionally, in Pennsylvania, plaintiffs in Johnson v. NCAA, former Villanova football player Trey Johnson and other Division I athletes are asking that athletes be deemed employees subject to the Fair Labor Standards Act.

The spotlight on this debate is only getting brighter.