On February 8, 2022, the National College Players Association (NCPA), an advocacy group for college athletes, filed unfair labor practice charges with the National Labor Relations Board (NLRB) against the National Collegiate Athletic Association (NCAA) and other college heavyweights. Athletics. The NCPA charges allege that the NCAA and others incorrectly classify student athletes as amateurs and ask the NLRB to rule that student athletes are employees under the National Labor Relations Act (NLRA).
Last fall, the NLRB’s General Counsel began seeking cases to advance the General Counsel’s position that student athletes at private (and possibly public) educational institutions should be considered employees under the NLRA.1 The NCPA charges could provide such a case.
The NLRA confers its protections — including the rights to unionize, demand negotiations, and engage in economic pressures such as layoffs — to “every employee.”2 which the agency’s rules define as meaning anyone “who provides services to another” and is “subject to the control or right of control of the other”.3 The NCAA has long treated student athletes as amateurs beyond those protections. For its part, the NLRB declined to address the issue of whether college athletes are NLRA employees in a 2015 case involving Northwestern University, finding that the exercise of jurisdiction over student-athletes in private educational institutions would not further the goals of the NLRA since the NCAA is “dominated” by public universities that fall outside the statutory scope of the NLRA.4
In this context, the June 2021 opinion of the United States Supreme Court in NCAA v. Alston5 revisited the student-athlete/employee question once again. In Alston — a class action lawsuit brought by certain current and former Division I athletes against the NCAA and several major athletic conferences — the Supreme Court ruled that the NCAA’s restrictions on education-related compensation for students athletes, whom the NCAA defended based on its notion of amateurism in college athletics, violated the Sherman Act’s prohibition on undue restraint of trade.6
Three months later, the NLRB’s General Counsel issued a memorandum asserting that student-athletes at private educational institutions are employees under the NLRA and therefore entitled to NLRA protections, notwithstanding the NLRB’s decision in the Northwestern case.7 The general counsel relied in part on Justice Kavanaugh’s agreement in Alston, which suggested that disputes over student-athlete compensation could be resolved through collective bargaining.8 The General Counsel also relied on her own assessment that student-athletes perform a valuable service to the NCAA and their individual institutions; that they receive significant compensation in the form of tuition fees, accommodation, meals and financial allowances; and that the NCAA and individual athlete institutions control the terms and conditions of their “employment” by issuing various rules and regulations.9
The General Counsel further indicated her intention to pursue her position – which must be adopted by the NLRB to have the force of law – in an appropriate case, on the theory that the NCAA’s refusal to classify student athletes as employees violates the NLRA by crippling the right of students to organize.ten To that end, the Advocate General advised that “cases involving the misclassification of players at academic institutions should be submitted” for review.11
The NCPA Complaint
Following the lead of the General Counsel, on February 8, 2022, the NCPA filed charges with the NLRB on behalf of certain Division I student-athletes and against the NCAA, Conference Pacific-12 (PAC-12) , the University of California-Los Angeles (UCLA) and the University of Southern California (USC).12 The NCPA charges allege that the NCAA and other defendant institutions “repeatedly misclassified employees as non-employee ‘student-athletes'” in order to circumvent the NLRA.13 Assuming the General Counsel decides to file a complaint in these cases, they will be tried before an administrative law judge, whose decision can then be appealed to the full NLRB.
The NCPA charges raise three questions regarding the status of student-athletes. The first question, which the NLRB declined to address in the Northwestern case, is whether Division I student-athletes at private educational institutions — here, USC — are “employees” of their institutions. respective as defined by the NRLA. Incidentally, the issue of whether student-athletes are “employees” entitled to legal protections is also the subject of litigation under the Fair Labor Standards Act in a case in which a District Court for the Eastern District of Pennsylvania recently denied the motion by the NCAA and other defendants. to reject.14 The Third Circuit Court of Appeals agreed to decide the issue on an interlocutory appeal in the case earlier this month.15
The second question is whether, assuming student-athletes are “employees” under the NLRA, the NCAA (and major athletic conferences) are joint employers with the athletes’ private educational institutions. The Attorney General’s recent memorandum expressed interest in pursuing such a “joint employer liability theory,” pointing to the “tight control” exercised by the NCAA over college athletes by setting eligibility standards and imposing unilateral contractual conditions, among others.16
Third, the NCPA complaint raises the question of whether major athletic conferences qualify as joint employers even when some of their member schools are public educational institutions – such as, in this case, conference member UCLA. PAC-12. The Advocate General’s earlier memorandum also weighed in on this issue, stating that, at least in some circumstances, “exercise of jurisdiction over the conference is appropriate even where some member institutions are public.”17
In short, the NCPA filing provides a vehicle for the General Counsel to advance her position that college student-athletes are employees entitled to the right to unionize and bargain collectively under the NLRA. . If Alston and the General Counsel’s September 29, 2021 memorandum raised significant questions about the status of student-athletes, the NCPA charges may soon provide answers.
1 General Council Mem. 21-08.
2 29 USC § 152(3). Contact us
3 Boston Med. CT. Corp., 330 NLRB 152, 160 (1999).
4 Northwestern University, 362 NLRB 1350 (2015); see also Columbia Univ., 364 NLRB No. 90, op. at 7 n.56 (2016).
5,141 S.Ct. 2141 (2021).
6 Id. at 2151-53, 2158-59; see also 15 USC § 1.
7 General Council Mem. 21-08.
8 Alston, 141 S.Ct. at 2168 (Kavanaugh, J., concordant).
9 General Council Mem. 21-08 at 3-5.
10 Id. at 4 o’clock.
12 NCPA Compl., February 8, 2022, https://aboutblaw.com/1Da.
13 Id. at 2 o’clock.
14 Johnson v. NCAA, No. CV19-5230, 2021 WL 3771810 (ED Pa. Aug. 25, 2021), motion for certification to appeal granted, No. CV19-5230, 2021 WL 6125095 (ED Pa. Dec. 28, 2021).
15 See Johnson et al. v. NCAA et al., No. 22-1223 (3d Cir. filed February 8, 2022).
16 General Council Mem. 21-08 to 9 n.34.
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