NLRB Region Files Complaint Against the NCAA, Pac-12 and the University of Southern California

On December 15, the National Labor Relations Board (NLRB)’s Region 31 announced it will pursue a complaint against the National Collegiate Athletic Association (NCAA), the Pac-12 Conference and the University of Southern California (USC) for violating the National Labor Relations Act (NLRA) by misclassifying student-athletes as non-employees, unless the matter is settled. On February 8, the National College Players Association filed an unfair labor practice (ULP) charge with the region alleging that USC; the University of California, Los Angeles; the Pac-12 Conference; and the NCAA are “joint employers” who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.”

Region 31 is part of the NLRB’s Office of General Counsel, which is responsible for receiving charges from employees, unions or employers that allege violations of the NLRA. The region decides whether to issue a complaint on charges it receives. If the region does not issue a complaint, the matter is generally closed. If the region decides to file a complaint, however, the case is litigated before an administrative law judge.

Region 31’s complaint is the latest development regarding the employment status of student-athletes. The National College Players Association’s February 8 charge followed NLRB General Counsel Jennifer Abruzzo’s memorandum issued last September in which she argues that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law.

The region’s decision in response to the February ULP charge means the NCAA, Pac-12 Conference and USC can either settle or litigate the case. A final ruling could take years to come to fruition, however, as both parties in the case could appeal the decisions made by the administrative law judge to the five-member NLRB. The NLRB’s decision can be appealed to federal appellate courts  and from there all the way up to the Supreme Court.

The news of the region’s complaint follows the announcement earlier in the day that Massachusetts Governor Charlie Baker would be the NCAA’s next president in March after his last term in office expires in January. Baker, a Republican, is known for his work to build bipartisan consensus on policy in Massachusetts, which the NCAA may recognize as a strength as they continue to engage Congress on other issues related to student-athlete compensation. It is unclear what, if any, impact this will have on the ULP charges.

CUPA-HR will continue to keep members apprised of this case and others involving student-athlete employment classification that may emerge in the future.