Significant NLRB Move Will Aid Pursuit of College Athletes Becoming Employees

The organization plans to pursue unfair labor practice charges against USC, the Pac-12 and the NCAA.

In an interview last January, ESPN lead football analyst Kirk Herbstreit made a proclamation: You might as well make college athletes employees.

“I say we’re on a path 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 took another significant step.

The National Labor Relations Board’s Los Angeles Region plans to pursue unfair labor practice charges against USC, the Pac-12 and the NCAA as single and joint employers of FBS football players and Division I men’s and women’s basketball players.

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 employee status for Division I basketball players, men and women, as well as FBS football players. The announcement makes public a story published last week from Sportico.

A ruling is still many months away, but the NLRB’s latest move, while expected, is a giant leap forward in the fight to have college athletes become employees. USC, the Pac-12 and NCAA will likely soon stand trial to fight the charge, legal experts say.

“It’s big,” says Gregg Clifton, a sports attorney based in Arizona and a former agent. “We are to have a trial over whether or not student-athletes are actually employees.”

The NLRB’s ruling, for now, would only apply to private schools, NCPA executive director Ramogi Huma Huma says. The NCPA dropped the charge against UCLA, a public school, in its original filing.

This is the latest chapter of 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 ruling in June, America’s sentiment has started to swing in the favor of players over those in charge—coaches, school administrators and conference officials.

Huma and the NCPA are confident in a final decision.

“Ultimately, this will end up at the Supreme Court,” Huma says. “And we feel confident about that. If it goes to the highest court in the land, we win.”

There’s a long way to get there though, says Clifton.

In the coming months, a hearing will be set in front of an administrative law judge, which will be followed by post-hearing briefs. The judge’s decision—are college athletes employees or not?—will likely come two to three months after the hearing.

That decision can be appealed to the five-person main NLR Board in Washington, D.C., which for now holds a Democratic majority (3–2). The board’s ruling could then, possibly, be appealed to the Supreme Court or district courts.

The fact that the main board leans Democratic is a significant note, as liberal decision-makers would lean to granting athletes employment rights, Clifton says.

In fact, last September, new NLRB general counsel Jennifer Abruzzo encouraged entities to file unfair labor charges against the NCAA. In a memo, she deemed college athletes employees under the National Labor Relations Act, a thundering message from the agency’s lead lawyer that invited athletes and athlete advocates to bring forth petitions to unionize. The NLRB is the independent agency that enforces U.S. labor law as it relates to collective bargaining.

Six years after the same board denied Northwestern football players the right to unionize as employees, Abruzzo, a Biden presidential appointee, cracked open a door.

The NCPA has swung it open.

“By definition, college athletes are employees under labor law,” Huma told Sports Illustrated last year. “They are skilled workers in their sport and are paid scholarships. They deserve the rights afforded to them under labor laws like every other American.”

Michael LeRoy, an Illinois law professor who has published extensive work on labor policy, believes this is an extension of the attempt in 2015 for Northwestern football players to unionize. Since then, the NLRB has broadened the definition of an employer, creating more possibilities of uniformity to allow unionization to occur in college sports, he says.

In 2024, USC begins play in the Big Ten, which means the league will likely be substituted for the Pac-12 in the NLRB’s charge.

“I don’t think it’s going to result in unionization anytime soon,” LeRoy says. “However, this is a problem that just got dropped in the Big Ten’s lap because USC is going into the Big Ten. The significance is it will keep this college athletes' employment in the news and create collateral pressure on lawmakers to legislate a collective bargaining law for college athletes.”

The NCPA’s filing charged both a private school (USC) and public school (UCLA)—a strategic move. The NLRB only has jurisdiction over private employers, but Abruzzo has argued that conferences and the NCAA are joint employers of athletes and that the NLRB’s jurisdiction could thus expand to all schools.

The athlete-employee issue, the latest ripple in the NCAA’s ocean of change, has been long speculated. Last September, at a convention of athletic directors in Washington D.C., Notre Dame AD Jack Swarbrick told a group, “Sometime in this school year, somewhere in the legal world or administrative level, a student-athlete will be declared an employee.”

Many college administrators have lined up 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 are students first and athletes second. That is non-negotiable for me,” he said. “The natural conclusion of deeming student athletes employees is very dangerous. It would also mean less of an investment in other sports that are not profit generating.”

Experts say it is an ideal time for athletes to be deemed employees, given the Supreme Court’s Alston ruling, the implementation of NIL, the NCAA’s restructuring and maybe most important, a Democratic-controlled White House and Senate.

Beyond the NLRB, there are several avenues in which athletes can be ruled employees, including a collective action suit out of Pennsylvania: Johnson vs. the NCAA. In Congress, Democratic Sens. Chris Murphy and Bernie Sanders introduced the College Athlete Right to Organize Act. At the state level, legislation has been introduced to either block athletes from becoming employers of their schools or to grant them that right.

“Every day the status quo seems to be more unsustainable,” Tulane sports law professor Gabe Feldman told SI last spring. “Some significant change is likely to happen in the near future. There is consensus: Athletes should be given more. The question: How do we do that while protecting the foundation of college sports?”

How the majority of Division I athletes themselves feel about becoming employees is rather unclear. No athlete or group of athletes have filed a charge with the NLRB, though former college basketball star Jordan Bohannon released a statement of his own about the latest move.

“I am clearly an employee as a G-League basketball player, and I’m doing the same thing I was doing just months ago for the University of Iowa,” said Bohannon, an NCPA Athletes Board Member. “The difference is that I now have employee rights under labor law and protections under a collective bargaining agreement. NCAA sports has used the words ‘student-athlete’ and ‘amateurism’ to skirt labor laws and deny generations of college athletes fair treatment. This NLRB decision is an important step toward much needed change.”

Many administrators balk at the idea of turning college athletes into employees, but several know what’s coming, said Tom McMillen, the president of Lead1, a DC-based organization that represents the FBS athletic directors.

Some administrators believe the solution lies in the nation’s Capital, where a Congressional bill could lay a legal path for schools to provide athletes collective bargaining rights and even revenue sharing provisions. Others suggest that, maybe, higher education and college athletics are headed for divorce.

“Everybody wants college football and basketball to be part of higher education,” one administrator told SI last year. “I don’t know if we can sustain it.”

Mit Winter, a sports attorney based in Kansas City and himself a former college basketball player at William & Mary, believes the future of college sports could possibly be separate from their own schools.

“I don’t know if universities and conferences and the NCAA want to participate in a system where they are collectively bargaining with the athletes. It remains to be seen,” he says. “There are different models that have been kicked around where athletic teams are spun off from the school and are their own standalone entities.”

Deeming college athletes as employees would have wide-ranging impacts on both the athletes themselves and their universities. Athletes would be rudely welcomed to the world of federal taxation. And they may even be at risk of termination by their new employer, the school.

Some administrators question whether a schools would retain their Section 501(3)c designation, which impacts taxation on bond financing and charitable gifts. Student fees and public support? Those might disappear too, experts say.

It is a complex issue. Like a freight train, says one athletic director, it is bearing down on college sports, grouped with other changes that are quickly altering the landscape of the industry—for better, some say; for worse, say others.

“Employee status is not a guarantee of better rights, but it would certainly empower the athletes to negotiate for better rights,” Feldman said. “Whatever the path is, there are downsides to the path. I don’t think any solution is necessarily going to be perfect. For every gain made for one athlete, it may lead to less from another athlete.”