In formal response to NLRB complaint, NCAA denies student-athletes are employees

In a 16-page formal response to the complaint filed last month by the National Labor Relations Board, the NCAA denies that student-athletes are employees and called for the complaint to be dismissed.

Characterizing the complaint’s allegations as “frivolous” and “without foundation in law or fact,” the NCAA’s response, filed Thursday evening and obtained by On3, comes two weeks after the NLRB Los Angeles Region issued a complaint against USC, the Pac-12 Conference and the NCAA. Industry experts view the machinations as a slow-moving march toward an inevitability: student-athletes being designated as employees of their schools, conferences, or the NCAA. That scenario would dramatically reimagine the college sports paradigm. 

In its response, the NCAA asserted that the NLRB should decline to exercise jurisdiction over the NCAA, Pac-12 and USC for several reasons, including “because doing so would create instability in collegiate athletics.”

Mori Rubin, the NLRB Region 31-Los Angeles Regional Director, issued the 11-page complaint on May 18 against the three respondents as joint employers of Trojans football and men’s and women’s basketball players. The complaint reflects NLRB General Counsel Jennifer Abruzzo‘s decision to litigate the case. A hearing with an NLRB Administrative Law Judge will take place Nov. 7 in Los Angeles. 

“The conduct of USC, the Pac-12 Conference, and the NCAA, as joint employers, deprives their players of their statutory right to organize and to join together to improve their working and playing conditions if they wish to do so,” Abruzzo said in a statement last month.

NCAA denies restricting student-athlete rights

In its response, the NCAA denied interfering with, restraining or coercing employees in the exercise of their rights under the National Labor Relations Act. 

In specific response to the charge that the NCAA, the Pac-12 and USC have been joint employers of the players, the NCAA stated those allegations “call for legal conclusion to which no response is deemed necessary. To the extent a response is deemed necessary, respondent NCAA denies the allegations set forth in paragraph 5(f) of the complaint.”

The NCAA asserted that the NLRB should decline to exercise jurisdiction over the NCAA, the Pac-12 and USC because doing so would place the National Labor Relations Act at odds with other existing federal statutes, including the Fair Labor Standards Act and FLSA Field Operations Handbook; the federal tax code; Title IX and federal immigration law.

The NCAA also denied the charge that the NCAA, Pac-12 and USC, either jointly or independently, have misclassified the players as non-employee student-athletes, including in the USC athletics student-athlete handbook. Additionally, the NCAA denied that any unfair labor practices have occurred as alleged in the complaint.

Mit Winter, a college sports attorney at Kennyhertz Perry in Kansas City, said the NCAA’s response asserts the NLRB shouldn’t exercise jurisdiction over the matter for a few novel reasons that aren’t legal in nature.

“For example, it says doing so would ‘create instability in college athletics.'” Winter told On3. “So, it’s sort of warning to the board that it doesn’t want to do something that would, in the NCAA’s opinion, harm college athletics. Another interesting affirmative defense made by the NCAA is that it has no authority to collectively bargain on behalf of schools or conferences and that it’s not an appropriate representative for the purposes of collective bargaining. If we do get to the point where college athletes unionize and can collectively bargain, the NCAA is admitting it’s not the appropriate body to engage in that process.”

Will athletes eventually be deemed employees?

The NLRB complaint marks “another step in the inevitable conclusion that certain college athletes are employees,” Winter recently told On3. “Whether it’s the Johnson (v. NCAA) case, this NLRB proceeding, or another case, college athletes are going to eventually be deemed employees.”

As Winter noted, this complaint is especially significant because it alleges a joint employer theory, which means that a decision in the NLRB’s favor would be applicable to college athletes at both private and public schools. Tom McMillen, the CEO of LEAD1 Association, which advocates on policy issues for all FBS athletic directors, has told On3 that college sports are on an “inexorable road” toward athletes being designated as employees.