NCAA Proposes Classifying Certain NCAA Student Athletes as Employees

Topics: Union-Management Relations

The National Labor Relations Board (NLRB) has been pushing hard to turn certain Division I college-level student-athletes into employees, at least for purposes of organizing and collective bargaining rights under the National Labor Relations Act. This year:

1. Region 31 of the NLRB filed a complaint (Case No. 31-CA-290326) alleging that the University of Southern California, the Pac 12 Conference, and the NCAA violated Section 7 of the National Labor Relations Act (NLRA) because their male football and basketball student-athletes, and female basketball student-athletes, (a) are employees and (b) are improperly restricted as to how they interact with the media and how they manage their social media accounts.  
    
2. Dartmouth College’s mens’ basketball team filed a petition to unionize and be represented by the SEIU in collective bargaining with Region 1 of the NLRB in Boston (Case No. 01-RC-325633). The hearing was held in October and a decision is pending.   

Previously, in September 2021, NLRB General Counsel Jennifer Abruzzo issued a General Counsel Memorandum stating that student-athletes in revenue-generating sports are employees under the NLRA and are entitled to all the protections of the Act, at least in her opinion.  

We have a new development in this area—Today, Charlie Baker, the NCAA President, announced a proposed rule change that will allow Division I schools to pay athletes in ways that are not tied to their educational resources. Under the proposal, NCAA member schools could opt-in to a newly formed NCAA Subdivision that would allow the opt-in schools to pay their student-athletes directly for the use of the student-athlete’s name, image and likeness. The schools that elect to opt-in to the Subdivision would have to pledge millions of dollars each year into a trust fund.  

This new proposal is supposed to be formally unveiled tomorrow at a press conference in Las Vegas. If this new proposal is adopted, it will make it easier for the NLRB (and perhaps other agencies) to argue that the student-athletes in this new Subdivision are employees and are entitled to unionize and receive all the other benefits of an employment relationship. ESPN covered this in an article on this proposal today. 

It is unclear where this is all leading, but there is no question that college athletics is changing very quickly. The line separating the current relationship between colleges and their revenue-generating student-athletes from an actual employment relationship between the schools and these athletes is getting thinner and thinner. We will continue to monitor and report on this interesting situation and the Dartmouth and USC cases.