Unfair labor practice complaint filed with NLRB against Ivy League

Yet another unfair labor practice complaint has been filed with the National Labor Relations Board – this time against the Ivy League.

Michael Hsu, co-founder of the College Basketball Players Association (CBPA), filed the complaint Tuesday afternoon because he asserts that it is an unfair labor practice to call college athletes student-athletes.

“It is a misclassification,” he told On3. “And it’s intended to make them feel like they have no rights.” 

This is the fourth unfair labor practice charge Hsu has filed in recent years as many legal and college sports experts believe student-athletes are on a slow march toward being classified as employees. That would be a designation that would dramatically reshape college athletics. It would unlock collective bargaining opportunities and perhaps usher in the era of revenue sharing. 

In November 2021, Hsu, a former University of Minnesota regent, filed an unfair labor practice charge against the NCAA. 

In July, Hsu filed an unfair labor practice complaint against Northwestern amid the alleged widespread hazing scandal that has ensnared the school’s football program. He said the university violated federal law by misclassifying players as student-athletes, and that had they been given employee status they would have been better protected from the type of culture and behavior that was allegedly commonplace within the program.

Additionally, on Sept. 18, Hsu filed an unfair labor practice complaint against Dartmouth on the heels of 15 members of the men’s basketball team filing a petition to the NLRB to unionize. 

While questions over when and how an employee model is ushered in remain unclear, that paradigm shift increasingly looks like the endgame.

“That’s my endgame,” Hsu said. “We have a lot of different ways of getting there. There’s the Johnson [v. NCAA] case. That’s in a different lane. Obviously, I’m in the NLRB lane – and I want to get that to happen.”

All eyes will be on NLRB on Nov. 7

On the immediate horizon, the college sports world will have its eyes squarely focused on the NLRB on Nov. 7, when a hearing with an NLRB Administrative Law Judge will occur in its case against the NCAA, Pac-12 Conference and USC.

On May 18, the NLRB’s Los Angeles office filed a complaint against the NCAA, Pac-12 Conference and USC for unfair labor practices. In early June, all three parties issued formal responses to the complaint, denying that student-athletes are employees. The NCAA called for the case to be dismissed. 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.” 

In the case of Northwestern, Hsu continues to hope that the NLRB revisits the university eight years after the Board dismissed a petition by the school’s football players, who sought to unionize. One year earlier, in 2014, Peter Sung Ohr, then regional director of the NLRB in Chicago, ruled that players on scholarship were employees based on the hours they spent each week on the sport and the financial aid they received as compensation. 

Ohr is now the NLRB deputy general counsel under Jennifer Abruzzo, whose consequential memo in September 2021 stated why athletes should be classified as employees. 

The CBPA, an advocacy group, has worked with athletes from various sports, including basketball, Hsu said, adding that it helps them on a confidential basis based on their needs and the CBPA’s capabilities.