When National Labor Relations Board General Counsel Jennifer Abruzzo announced late last year the board’s new policy favoring union organizing of college football and basketball players, she seemed to have gone off the deep end a bit by adopting Orwellian Newspeak. However, recent events show the board is serious in pursuing this course.
Last fall, Abruzzo raised some eyebrows when she declared: “While players at academic institutions [PAI] are commonly referred to as ‘student-athletes,’ I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections.”
At that time, she told the NLRB regional staff quite clearly that universities and college athletes misclassifications of these players as student athletes by higher education institutions would be pursued as an unfair labor practice (ULP), which is exactly what the board has now done.
Bolstered by the NLRB’s policy change, the National College Players Association filed just such a ULP complaint against the NCAA, the Pac-12 Conference, and University of Southern California and the University of California, Los Angeles, which if granted would go a long way to creating a precedent for the rest of the country.
NCPA charges that NCAA Division-I men’s and women’s basketball and FBS football players should be recognized as university employees. A similar ULP charge by the College Basketball Players Association filed against the NCAA with the NLRB’s regional office in Indianapolis
Around the same time the NCPA filed its complaint, the U.S. Court of Appeals for the Third Circuit agreed to hear an appeal on the question of whether Division I student athletes can be seen as employees of their schools solely by virtue of their participation in interscholastic athletics.
“It is possible that the National College Players Association will file additional ULPs in other regions. However, choosing schools within the Ninth Circuit seems to be deliberate because it and federal district courts in California already have issued opinions favorable to college athletes, note attorneys for the law firm of McGuireWoods.
In addition, Senators Chris Murphy (D-Conn.) and Bernie Sanders (I-Vt.) have proposed the College Athlete Right to Organize Act, which would amend the National Labor Relations Act and grant student-athletes collective bargaining rights, regardless of any existing state law restrictions.
Importantly, the interpretation of joint-employer liability found Abruzzo’s PAI memo could extend beyond the field of college athletics because it signals an aggressive interpretation of joint-employer liability, a policy already under general review by the board, say attorneys for the law firm of K&L Gates LLP
“Given the NLRB’s clear intention to expand the scope of protected activity, all employers (not just academic institutions) should exercise caution when deciding whether or not to discipline or curtail discussions concerning health and safety concerns (importantly as related to the Covid 19 pandemic) or social justice issues,” the attorneys warn.
Under current law, NLRB jurisdiction only applies to private sector workers, not public employees. The lawyers point out that if the California complaint succeeds, it could extend the board’s reach beyond private employers to public entities for the first time because USC and UCLA, which are public universities, are parties to the complaint.
The K&L Gates attorneys predict that if this is what happens, the U.S. Department of Labor or other federal and state employment agencies also will adjust their guidances and consider players to be employees for purposes of wage and hour laws, workplace health and safety laws, workers’ comp benefits, unemployment insurance, leave laws or anti-discrimination protections under various other laws and agencies.