High stakes NLRB trial against USC, Pac-12 and NCAA resumes

As the consequential National Labor Relations Board’s trial of USC, the Pac-12 and the NCAA resumes Monday in a Los Angeles regional office, two primary questions are paramount:

First, will the administrative law judge ultimately reach the same conclusion as the NLRB Boston-based regional director did in ruling that Dartmouth’s men’s basketball players are employees of their college?

The industry has followed both cases with great interest, as a growing number of legal experts believe we are on a slow march toward an employee model, at least for some athletes, which would usher in a radically new paradigm.

USC, the Pac-12 and the NCAA are charged with unlawfully misclassifying USC football and men’s and women’s basketball players as student-athletes rather than employees.

“I think it’s almost guaranteed the judge will declare the USC athletes are employees of the school,” Mit Winter, a college sports attorney at Kennyhertz Perry, told On3. “If you look at the Dartmouth decision, the factors the regional director focused on there are stronger in the USC case.”

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How much control do schools have over athletes?

For instance, the amount of control a power conference school exercises over its athletes, Winter said, is generally much greater than the control exerted by Ivy League schools over their athletes.

Second, the benefit a school like USC receives from the services provided by its basketball and football players is much greater than at Dartmouth, he said. USC makes millions of dollars per year from the operation of its basketball and football teams, while the Dartmouth men’s basketball team likely loses money.

And third, the compensation provided to USC basketball and football players is also much greater than the compensation provided to Dartmouth’s men’s basketball players.

Most of the USC basketball and football players receive full athletic scholarships – while no Dartmouth basketball players do – and the other benefits USC basketball and football players receive – free gear, etc. – are also at a much higher level in Los Angeles.

Will NLRB say athletes are employees of Pac-12, NCAA?

The second – and more interesting – question: Will the judge also find that USC basketball and football players are employees of the Pac-12 and NCAA under a joint employer theory?

The NLRB has jurisdiction only over private employers. But if the judge rules that the Pac-12 and NCAA are joint employers, then it could open the door for athletes at public schools to also be classified as employees, which would afford them the right to unionize and collectively bargain as well.

It is possible for the judge to conclude the athletes are employees of USC but not the Pac-12 or NCAA. That decision could hinge on whether the judge finds the athletes are compensated by the conference and the NCAA, and how much control each exerts over the athletes.

Because of the potential that the Pac-12 and NCAA are deemed joint employers, Winter views the USC decision as “potentially more important and more impactful” than the Dartmouth decision in terms of its effect on the future model of college athletics.