Are College Athletes Employees?

The Los Angeles Regional Office of the NLRB has issued a complaint against the University of Southern California, the NCAA and the PAC-12 conference alleging that football players at the university are employees within the meaning of the National Labor Relations Act who are entitled to union organization and collective bargaining rights. The current NLRB General Counsel issued a Memorandum in September, 2021 arguing that student athletes are employees, an argument never before accepted by the NLRB or the courts. In fact, in a 2015 case, the NLRB expressly rejected the contention that student athletes are employees, based on lack of precedent and the obvious disruption that would befall college athletics.  

Not only has the NLRB's legal department renewed the push for employee status for college athletes, but the complaint alleges that USC, the NCAA and the PAC-12 conference are joint employers of college football players. The reason for this surprising contention is that unless the NCAA or PAC-12 are joint employers with USC, the NLRB has no jurisdiction over USC, which is a public university, not a private organization like the NCAA or PAC-12. No doubt the NCAA and PAC-12 will not be ready to assume any "employer" role for student athletes, and the State of California will not be ready to submit to NLRB jurisdiction over one of its subordinate branches.

The complaint vividly illustrates the extreme measures that the current NLRB General Counsel will employ in order to change the labor relations laws. More importantly, as the NLRB itself recognized in 2015 and as some commentators have noted now, conferring employee status on college athletes will have many unanticipated disruptive effects. Will football players exercise the right to strike? Can they picket football games in support of demands for better benefits (or any other desired improvements)? Will they bring unfair labor practice charges against their "joint employers" NCAA and PAC-12? Will college athletes demand NLRB elections to choose collective bargaining representatives? Will college athletes bargain for high salaries and benefits modeled after professional sports in lieu of the current scholarships? Will the NCAA and the PAC-12 have to sit at the bargaining table?