In an interview last January, ESPN chief football analyst Kirk Herbstreit declared: You might as well have college athletes as employees.
“I say we’re on a unionization path,” he said on the “Pardon My Take” podcast. “That’s where we’re going.”
Less than a year later, the movement to make college athletes college employees has taken another major step.
The National Labor Relations Board in the Los Angeles area plans to bring unfair labor practice charges against USC, the Pac-12, and the NCAA as the sole and joint employers of FBS football players and Division I men’s and women’s basketball players.
The move comes 10 months after the National Association of Collegiate Players filed charges with the NLRB office. The goal of the NCPA is to identify employees of Division I basketball players, men and women, and FBS football players. The announcement follows a report published last week from Sportico.
The ruling is still many months away, but the NLRB’s latest move, while expected, is a big step in the fight to make college athletes employees. Legal experts say the USC, Pac-12 and NCAA may soon go to trial to fight the charges.
“It’s big,” said Gregg Clifton, an Arizona sports attorney and former agent. “We’re going to have a trial on whether the student-athlete is really an employee.”
NCPA executive director Ramogi Huma Huma said the NLRB’s ruling currently only applies to private schools. The NCPA dropped the charges against the public school UCLA in its original filing.
It’s the latest chapter in the athletes’ rights movement, which has overhauled antiquated NCAA player compensation and transfer policies. Buoyed by the Supreme Court’s ruling against Alstom in June, sentiment in the U.S. began to shift in favor of the players rather than those in charge — coaches, school administrators and conference officials.
Huma and the NCPA are confident in the final decision.
“Ultimately, this will end in the Supreme Court,” Huma said. “We’re confident about it. If it goes to the highest court in the country, we win.”
Clifton said there is still a long way to go before that happens.
Over the next few months, there will be hearings before an administrative law judge, followed by a post-hearing briefing. Judge’s Decision – Are College Athletes Employees? — probably two to three months after the hearing.
The decision can be appealed to the five-member NLR main committee in Washington, D.C., which currently has a Democratic majority (3-2). The committee’s decision may then be appealed to the Supreme Court or a district court.
The fact that the board leans Democratic is important because liberal policymakers tend to grant employment rights to athletes, Clifton said.
In fact, last September, new NLRB general counsel Jennifer Abruzzo encouraged entities to file unfair labor charges against the NCAA. In a memo, she treated college athletes as employees under the National Labor Relations Act, a thunderous message from the agency’s top attorney, inviting athletes and athlete advocates to file a petition to unionize. The NLRB is an independent agency that enforces U.S. labor laws related to collective bargaining.
Six years after the same board denied Northwestern football players the right to unionize as employees, President Biden’s Abruzzo opened the door.
The National Theater has opened it up.
“By definition, college athletes are employees under labor law,” Huma told Sports Illustrated last year. “They are skilled workers in the sport and receive scholarships. They deserve the same rights that other Americans have under labor law.”
Michael LeRoy, an Illinois law professor who has published extensively on labor policy, sees this as an extension of a 2015 attempt by Northwestern football players to unionize. Since then, the NLRB has broadened the definition of an employer, creating more uniform possibilities and allowing unions in college sports, he said.
USC starts playing in the Big Ten in 2024, which means the conference will likely replace the NLRB-run Pac-12.
“I don’t think it’s going to lead to unionization anytime soon,” LeRoy said. “However, this is an issue that has just been thrown around in the Big Ten, as USC is about to enter the Big Ten. Importantly, it will keep the college athlete’s employment in the news and give lawmakers a spin-off. pressure on lawmakers to enact collective bargaining laws for college athletes.”
NCPA’s filing charges both private schools (USC) and public schools (UCLA)—a strategic move. The NLRB has jurisdiction only over private employers, but Abruzzo argues that the conference and the NCAA are joint employers of athletes, so the NLRB’s jurisdiction could extend to all schools.
The player-employee issue is the latest ripple in a sea of change for the NCAA that has long been subject to speculation. Last September, at a meeting of athletic directors in Washington, D.C., Notre Dame vice chancellor Jack Swarbrick told a group that “at some point during the academic year, someone at the legal or administrative level where the student-athlete will be declared an employee.”
Many college administrators are in the fight against making athletes employees. In an interview with a Portland radio station last January, Pac-12 Commissioner George Kliavkoff disagreed that college athletes should be employees.
“They’re students first, athletes second. That’s non-negotiable to me,” he said. “The natural conclusion to treat student-athletes as employees is very dangerous. It also means less investment in other sports that don’t generate profits.”
Given the Supreme Court ruling against Alstom, the implementation of the NIL, the reorganization of the NCAA and, perhaps most importantly, the Democratic-controlled White House and Senate, experts say now is the ideal time for athletes to be considered employees.
Besides the NLRB, there are several avenues for athletes to become employees, including a Pennsylvania class action: Johnson v. NCAA. In Congress, Democratic Senators Chris Murphy and Bernie Sanders introduced the College Athlete Right to Organize Act. At the state level, legislation has been introduced to prevent athletes from being employers of schools or to grant them this right.
“Every day, the status quo seems to be getting more unsustainable,” Tulane sports law professor Gabe Feldman told SI last spring. “There may be some big changes in the near future. There’s a consensus: athletes deserve more. The question is: How do we do that while protecting the foundations of college athletics?”
How most Division I athletes themselves feel about being an employee is unclear. No athlete or athlete group has filed charges with the NLRB, though former college basketball star Jordan Bohannon issued his own statement regarding the latest move.
“As a G League basketball player, I’m obviously an employee, and I’m doing the same thing I was doing at Iowa a few months ago,” said Bohannon, a member of the NCPA Athletic Council. “The difference is that I now have employee rights under labor law and protections under collective bargaining agreements. NCAA sports use terms like ‘student-athlete’ and ‘amateur’ to circumvent labor law and deny the rights of generations of college athletes.” Fair treatment. This NLRB decision is an important step toward much-needed change.”
Many administrators balked at the idea of turning college athletes into employees, but a few knew what was coming, said Tom McMillen, president of Lead1, the Washington, D.C.-based representative FBS athletic director. organization.
Some administrators believe the solution lies in the nation’s capital, where an act of Congress could provide legal avenues for schools, collective bargaining rights and even revenue-sharing provisions for athletes. Others believe that higher education and college sports may go their separate ways.
“Everybody wants college football and basketball to be part of higher education,” an administrator told SI last year. “I don’t know if we can sustain it.”
Mit Winter, a sports attorney in Kansas City and himself a former college basketball player at William & Mary, believes the future of college sports may be separate from their own schools.
“I don’t know if colleges and conferences and the NCAA want to engage in a system where they bargain collectively with athletes. That remains to be seen,” he said. “There are different models that get kicked out and the sports teams are separated from the schools and are their own separate entities.”
Treating college athletes as employees has wide-ranging implications for the athletes themselves and the universities they attend. Athletes will be greeted rudely by the federal tax world. They may even be at risk of being fired from their new employer school.
The school could lose its Section 501(3)c designation, which affects the taxation of bond financing and charitable donations. Student fees and public support? Those, too, could disappear, experts say.
This is a complex issue. It’s like a freight train, one athletic director says, that’s putting pressure on college sports, plus other changes that are rapidly changing the landscape of the industry — for the better, some say; for worse, Others said.
“Employee status doesn’t guarantee better rights, but it certainly empowers athletes to fight for better rights,” Feldman said. “Whatever the path is, there are downsides to that path. I don’t think any solution is necessarily perfect. For every gain achieved by one athlete, it may result in less for another athlete.”