In an interview last January, ESPN senior football analyst Kirk Herbstreit made a proclamation: You might as well make college athletes employees.
“I’m saying we’re on the road to unionization,” he said on the “Pardon My Take” podcast. “That’s where we’re headed.”
Less than a year later, the movement to make college athletes employees of their universities has taken another big step.
National Labor Relations Board Los Angeles Region plans to pursue unfair labor practice charges against USC, Pac-12 and NCAA as sole and joint employers of FBS football players and basketball players men’s and women’s Division I.
The National College Players Association announced the move 10 months after filing the charge with the NLRB office. The NCPA’s goal is to affirm the employee status of Division I basketball players, men and women, and FBS football players. The announcement publicizes an article published last week by Sportico.
A decision is still months away, but the NLRB’s latest decision, while expected, is a giant step in the fight to get college athletes into employees. USC, the Pac-12 and the NCAA will likely go to trial soon to fight the charge, legal experts say.
“It’s big,” says Gregg Clifton, an Arizona-based sports attorney and former agent. “We need to have a trial on whether or not student-athletes are actually employees.”
The NLRB’s decision, for now, would only apply to private schools, said NCPA executive director Ramogi Huma Huma. The NCPA dropped the charge against UCLA, a public school, in its original filing.
This is the latest chapter in an athlete rights movement that has generated sweeping changes to archaic NCAA policies governing athlete compensation and transfer policies. Buoyed by the Supreme Court’s Alston decision in June, American sentiment began to swing in favor of the players over those responsible – coaches, school administrators and conference officials.
Huma and the NCPA are confident of a final decision.
“Ultimately, this will end up in the Supreme Court,” Huma said. “And we are confident about that. If it goes to the highest court in the land, we win.
There’s a long way to go to get there, says Clifton.
In the coming months, a hearing will be scheduled before an administrative law judge, which will be followed by post-hearing briefs. The Judge’s Decision – Are College Athletes Employees or Not? – will probably take place two to three months after the hearing.
That decision can be appealed to the NLR’s five-person Main Council in Washington, DC, which currently has a Democratic majority (3-2). The council’s decision could then potentially be appealed to the Supreme Court or the district courts.
The fact that the main board leans Democratic is an important note, as Liberal policymakers would lean toward giving job rights to athletes, Clifton says.
In fact, last September, the NLRB’s new general counsel, Jennifer Abruzzo, encouraged the entities to file unfair labor charges against the NCAA. In a memo, she considered college athletes to be employees under the National Labor Relations Act, a thunderous message from the agency’s senior attorney that called on athletes and athlete advocates to present petitions to unionize. The NLRB is the independent body that enforces US labor law with respect to collective bargaining.
Six years after the same board denied football players in the North West the right to unionize as employees, Abruzzo, a President Biden appointee, opened a door.
The NCPA opened it.
“By definition, college athletes are employees under labor law,” Huma said. Sports Illustrated Last year. “They are skilled workers in their sport and they receive scholarships. They deserve the rights granted to them under labor laws like all other Americans.
Michael LeRoy, an Illinois law professor who has published extensively on labor policy, believes this is an extension of the 2015 attempt by Northwestern football players to unionize. . Since then, the NLRB has expanded the definition of an employer, creating more opportunities for uniformity to allow for unionization in college sports, he says.
In 2024, USC begins play in the Big Ten, which means the league will likely be replaced by the Pac-12 at the expense of the NLRB.
“I don’t think that will translate to unionization anytime soon,” LeRoy says. “However, this is an issue that has just been dropped into the Big Ten’s lap because USC is entering the Big Ten. The significance is that it will keep these college athletes employed in the news and will create collateral pressure on lawmakers to enact collective bargaining legislation for college athletes.
The NCPA filing charged both a private school (USC) and a public school (UCLA) – a strategic decision. The NLRB only has jurisdiction over private employers, but Abruzzo argued that conferences and the NCAA are joint employers of athletes and thus the NLRB’s jurisdiction could extend to all schools.
The athlete-employee question, the latest wave in the NCAA’s ocean of change, has long been speculated. Last September, at an athletic directors’ convention in Washington D.C., Notre Dame AD Jack Swarbrick told a group, “During this school year, somewhere in the legal world or at the administrative level, a student-athlete will be declared employed.”
Many college administrators have aligned themselves in the fight against hiring athletes. In an interview with a Portland radio station last January, Pac-12 commissioner George Kliavkoff disagreed that varsity athletes should be employees.
“They are students first and athletes second. It’s non-negotiable for me,” he said. “The natural conclusion to consider student-athletes as employees is very dangerous. It would also mean less investment in other non-profit making sports.
Experts say now is the perfect time for athletes to be considered employees, given the Supreme Court’s Alston decision, the implementation of NIL, the restructuring of the NCAA and possibly the more importantly, a Democratic-controlled White House and Senate.
Beyond the NLRB, there are several avenues in which athletes can be considered employees, including a class action lawsuit out of Pennsylvania: Johnson v. NCAA. In Congress, Democratic senses 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 becoming employers of their schools or to grant them that right.
“Every day the status quo seems to be more unsustainable,” Gabe Feldman, a Tulane sports law professor, told SI last spring. “Some significant changes are likely to occur in the near future. There is consensus: athletes should receive more. The question: how do we achieve this while protecting the foundations of college sport?”
It’s unclear what the majority of Division I athletes themselves feel about becoming employees. No athlete or group of athletes has filed a complaint with the NLRB, although former college basketball star Jordan Bohannon released his own statement on the latest decision.
“I’m clearly an employee as a G-League basketball player, and I’m doing the same thing I was doing a few months ago for the University of Iowa,” said Bohannon, a member of the NCPA Athlete Council. “The difference is that I now have employee rights under labor law and protections under a collective bargaining agreement. NCAA sports have used the words ‘student-athlete’ and ‘amateurism’ to circumventing labor laws and denying generations of college athletes fair treatment.This decision by the NLRB is an important step towards much-needed change.
Many administrators balk at the idea of turning college athletes into employees, but many know what’s coming, said Tom McMillen, president of Lead1, a DC-based organization that represents FBS athletic directors.
Some administrators believe the solution lies in the nation’s capital, where a congressional bill could open a legal avenue for schools to provide athletes with collective bargaining rights and even revenue-sharing provisions. Others suggest that, perhaps, higher education and college athletics are headed for divorce.
“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 maintain it.”
Mit Winter, a Kansas City-based sports attorney and himself a former college basketball player at William & Mary, thinks the future of college sports could eventually be separated from their own schools.
“I don’t know if universities and conferences and the NCAA want to participate in a system where they bargain collectively with athletes. That remains to be seen,” he says. “There are different models that have been started where sports teams come out of school and are their own stand-alone entities.”
Viewing college athletes as employees would have broad implications for both the athletes themselves and their universities. Athletes would be unwelcome in the world of federal taxation. And they even risk being fired by their new employer, the school.
Schools could lose their designation under 501(3)c, which impacts taxation on bond financing and charitable donations. Tuition fees and public support? These could also disappear, experts say.
It is a complex question. Like a freight train, says one athletic director, it’s swooping down on college sports, bundled with other changes that are rapidly changing the landscape of the industry — for the better, some say; for the worse, say others.
“Employee status is not a guarantee of better rights, but it would certainly allow athletes to negotiate for better rights,” Feldman said. “Whatever the path, there are downsides to the path. I don’t think a solution is necessarily perfect. For every gain made for one athlete, it may result in less for another athlete.