The NLRB’s Mandated Culture Change: Treat Athletes as Employees

It is not easy to set aside many years of tradition and begin thinking of athletes as employees. But, for Division 1 schools, the day may have arrived. In October 2021, we issued an Alert in which we explained that the NLRB’s General Counsel, Jennifer Abruzzo, takes the position that Division 1 athletes in revenue-producing sports should be considered “employees” under the National Labor Relations Act (“the Act”). In fact, in GC Memorandum 21-08, Ms. Abruzzo explained that just using the phrase “student athlete” is a violation of section 8(a)(1) of the Act, ostensibly because this phrase tends to chill athletes’ willingness to engage in conduct protected under the Act.

The Act applies to private entities, not public institutions. Thus, at least in theory, GC 21-08 was of no real consequence to public colleges and universities. That theory has now been put to the test. The National College Players’ Association (“NCPA”) filed an unfair labor practice charge on February 8, 2022, against UCLA, USC, the PAC-12, and the NCAA. The NCPA alleges that all these entities are joint employers of athletes. The NCPA further alleges that these joint employers have interfered with athletes’ exercise of rights protected under the Act. (For example, the right to discuss compensation and working conditions). Since the NCAA and the PAC-12 are private entities, if the allegation of a joint employer relationship is found to have merit, USC and UCLA can effectively be subject to the Act even though they are public entities.

How serious is this development? In a word, “very.” Many in higher education were already concerned about the expansive view of the definition of “employee” reflected in GC 21-08.  Now this must be considered in conjunction with the Board’s expansive view of who may be a “joint employer.” The NCPA will contend that NCAA and the PAC-12 are joint employers with USC and UCLA because the NCAA and the PAC-12 develop and enforce terms and conditions governing athletes’ “employment” (i.e., participation in sports). If the Board agrees, logically other similar public universities can expect to be treated as joint employers with the NCAA and their conferences. Moreover, thus far the Board’s focus has been on Division 1 athletes in revenue-producing sports, but there are no guarantees that this is where the Board’s focus will end.

For all these reasons, the progress of the NCPA’s unfair labor practice charge deserves close attention. We will be keeping readers updated. Beyond that, the new charges by the NPCA serve as another signal (in addition to GC 21-08) to colleges and universities that they ought to consider changes to their policies now in order to be better positioned to defend charges later.

If you have questions about how these policies may affect your college or university, contact one of the authors below.