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NLRB opens door for union for college athletes

By Chris Isidore, CNN

Are college athletes employees? In a potentially game-changing move, the National Labor Relations Board’s regional office in Los Angeles has taken a step forward to define USC players that way.

On Thursday, the NLRB’s Los Angeles office found merit in an unfair labor practice complaint filed on behalf of players on the football and basketball teams at the University of Southern California. This could open the door to previously unsuccessful efforts to form the first union of college athletes.

The complaint had been filed by the National College Players Association (NCPA), an advocacy group. The group had previously tried to form a union of football players at Northwestern University, but had failed to get the NLRB to rule on whether the athletes should be considered employees of the school who have a right to unionize.

This time, the group tried a different track. It filed an unfair labor practice complaint on behalf of the athletes.

In the complaint, it said that the school, in referring to the members of the men’s and women’s basketball teams and the school’s football team as “student-athletes,” was denying them their rights as employees of the school.

The matter of whether college athletes are professionals, and thus employees, has been hotly debated for decades. But the NLRB’s regional director in Los Angeles found that there was merit in this specific complaint and that the athletes should be considered employees.

NLRB General Counsel Jennifer Abruzzo issued a statement that the finding that the unfair labor practice complaints “have merit is based on a determination that USC, the Pac-12 Conference, and the NCAA, as joint employers, have maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protections under our law.”

“This kind of misclassification deprives these players of their statutory right to organize and to join together to improve their working/playing conditions if they wish to do so,” she added. “Our aim is to ensure that these players can fully and freely exercise their rights.”

USC issued a statement pointing out that the case was still at a very preliminary stage.

“No final ruling will be issued until there has been a full hearing based on all the relevant facts and law,” said the school. “We look forward to presenting those facts, along with 75 years of favorable legal precedent, at the appropriate time.”

The Pac-12, the college conference in which USC plays, declined to comment on the finding.

The NCAA did not immediately respond to a request for comment on the NLRB action, which came late Thursday evening.

There is still a long path from this finding and any attempt to organize a union at USC or any other college sports program.

First of all, the NLRB only has legal authority over labor relations in the private sector, not in the public sector. Most major college sports programs are at state schools and, thus, their employees, be they student athletes, professors or other staff, would not have their labor relations overseen by the NLRB.

Both Northwestern and USC are private schools. In its 2015 decision declining to rule on whether the Northwestern team members were employees who could form a union, the NRLB said in a statement at the time that “asserting jurisdiction over a single team would not promote stability in labor relations across the league.”

So, the finding by the NLRB that the USC athletes are subject to protections against unfair labor practices by their school, conference and the NCAA is a legal step beyond what was achieved seven years ago.

Since that decision, the US Supreme Court has already opened the door for greater compensation for college athletes, with a June 2021 ruling striking down many NCAA rules that had severely limited such compensation.

NLRB General Counsel Abruzzo had already issued an opinion in September of 2021 that athletes on college teams should be considered employees. But until there was a complaint filed on which the agency could rule, that opinion did not change the status of the athletes.

USC, the Pac-12 and the NCAA will now be given a chance to negotiate protections for the athletes with the NCPA. If they don’t settle the dispute, the NLRB will issue a complaint, prosecuting this charge in a hearing with an administrative law judge, who could order remedies.

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