Tag: student athlete

NLRB Issues Complaint for Athlete Misclassification against NCAA, Pac-12, and USC

On May 18, 2023, the National Labor Relations Board’s (the Board) regional director in Region 31 issued a complaint against the National Collegiate Athletic Association (NCAA), the Pac-12 Conference, and the University of Southern California (USC), alleging they violated the National Labor Relations Act (the Act) by misclassifying college football and basketball players as “non-employee student-athletes.” The original charge was issued back in February 2022 and alleged all three entities were in violation of the Act as “joint employers” of these athletes.

While this issue is not necessarily new to higher education, the Board’s decision to issue a complaint—and issue that complaint against all three entities—is new ground, as it departs from a 2015 precedent and paves the way for student-athletes to unionize at potentially both private and now public institutions. Under the Act, the Board has authority over private-sector workers, while state labor boards have jurisdiction over employees at state institutions. However, because the students at issue in Thursday’s complaint would be considered employees of the private NCAA and Pac-12 as well as USC, all three entities would be subject to potential liability as “joint employers.” What this means for public institutions is that there is a real and likely potential that the “joint employer” doctrine will allow for an end run around the Act’s coverage exemption for public-sector entities. As such, all student-athletes could potentially seek to collectively bargain at the NCAA level.

Finding merit to the charge and issuing this complaint is a logical result of General Counsel (GC) Memorandum GC 21-08 issued by the Board’s GC Jennifer Abruzzo in late September 2021. At that time, we issued an alert detailing the GC’s desire to expand the definition of “employee” in order to bring scholarship collegiate athletes under the Act. In February 2022, we issued another alert detailing how USC was likely to be the test case for that endeavor.

Alleging the violation of Section 7 of the Act, Thursday’s complaint arises from charges filed by the National College Players Association, a nonprofit advocacy association founded by former UCLA football player Ramogi Huma. The charge and complaint asserted that USC, the Pac-12, and NCAA misclassified student-athletes in order to deny them their rights under the Act, including the right to speak about compensation and working conditions. In addition to the alleged misclassification issue, the complaint alleges that USC illegally obstructed athletes’ organizing by “maintaining unlawful rules and policies in its handbook, including restricting communications with third parties, in the media, etc.”

Colleges and universities may be tempted to minimize this issue by thinking that the shift to seeing student-athletes as employees would affect them only in the event their athletes attempt to form a union. That is not the case. While a Board determination that student-athletes are employees could lead to a renewed effort by college athletes to organize, the GC has already cautioned (and made good on that warning) that the Board will seek to issue unfair labor practice charges against colleges and universities that misclassify student-athletes as “non-employees” or engage in other violations of the Act. For example, the GC has previously made clear that protections afforded by the Act apply to concerted activity such as expressions of support for social justice issues and other advocacy. As such, higher education institutions would be wise to tread lightly into these waters when they arise, because where employee status exists, concerted efforts of those employees to speak their minds or speak out on certain issues will be viewed as protected under the Act.

The hearing on the Board’s complaint is set for November 7, 2023.

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For more Labor and Employment Legal News, click here to visit the National Law Review.

High School Female Athletes Fail to Score on Class Certification

The U.S. District Court for the District of Hawaii recently denied female student-athletes’ motion for class certification under Title IX even though it rejected the defendants’ attacks on mootness and standing as well as Rule 23(a)’s requirements for commonality, typicality, and adequacy. Instead, the court found that the proposed class failed to satisfy the numerosity requirement that joinder would be impracticable.

The underlying case centered on Title IX allegations by female athletes at James Campbell High against defendants Hawaii State Department of Education and the Oahu Interscholastic Association. The athletes claimed that the defendants violated Title IX by failing to take remedial actions to meet Title IX’s anti-discrimination provisions and failed to provide Campbell female athletes with equivalent, athletic-participation opportunities. The athletes’ motion proposed the following class: “All present and future James Campbell High School female students and potential students who participate, seek to participate, and/or were deterred from participating in athletics at Campbell.” The plaintiffs alleged that the defendants’ records showed 366 Campbell female student-athletes in the 2018–2019 school year alone.

The court first addressed the issue of mootness after the defendants argued that two of the named plaintiffs had already graduated. The court found, however, that those athletes’ claims fit under the “inherently transitory” exception to mootness, given the necessarily finite duration of a high school student’s time as a student-athlete and the potential for repetition of the claims from similarly situated students.

The court next addressed the defendants’ argument that the named plaintiff — a ninth-grade water polo player — did not have standing because the water polo season had not yet begun at the time the motion was filed, and thus she had yet to experience the alleged discriminatory conduct. The court found that the defendants’ argument was erroneously narrow-focused and that the ninth-grade athletes had allegedly experienced discriminatory events generally suffered by the female student-athlete populations, which would apply even if a particular student’s athletic season had not yet started. Specifically, those student-athletes are forced to make plans around a discriminatory sports schedule or are exposed to a lack of publicity for female athletics programs, which are the types of harm that Title IX was implemented to prevent and remedy.

The court then turned its focus to Rule 23(a)’s requirements. While the court found that the athletes satisfied the commonality, typicality, and adequacy requirements, the court’s decision ultimately depended on the athletes’ inability to satisfy the numerosity requirement. Although the defendants did not appear to challenge numerosity, including that the class exceeded 300 members, the court found that the athletes had failed to demonstrate that joinder was impracticable and that the future members of the proposed class were reasonably identifiable. The court observed that the proposed class members were limited to the female population from a single high school and were geographically tied to one area of Hawaii and identifiable through school and athletic records. Thus, the court held that joinder of the current students within the class in a single lawsuit was not impracticable. The court also found that, with regard to the future and potential students, those subgroups were not reasonably identifiable and, thus, would not be considered in any numerosity determination.

As uncommon as it may be for a class of more than 300 members to fail the numerosity requirement of Rule 23(a), any case can offer distinct circumstances that allow a court to reject an otherwise presumed, accepted argument. The unique geographic facts here were sufficient for this court to reject certification. Ultimately, the facts always matter.

A.B. v. Haw. State Dep’t of Educ., Civ. No. 1:18-cv-00477 (D. Haw. Dec. 31, 2019).

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For more on Title IX issues, see the National Law Review Public Education & Services section.

Northwestern Scholarship Football Players Found to be Employees Eligible for Union Representation

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Peter Sung Ohr, the Regional Director for Region 13 of the National Labor Relations Board issued a Decision and Direction of Election pertaining to the effort of the Northwestern University football players to unionize. The Regional Director found that scholarship football players at Northwestern University are “employees” within the meaning of the National Labor Relations Act and eligible for union representation. The Regional Director found appropriate a bargaining unit composed of “all football players receiving a grant-in-aid football scholarship and not having exhausted their playing eligibility.”

The Regional Director used the common law definition of employee in reaching his decision. Under the common law test, a person is an employee if he performs a service for another, under a contract of hire, for compensation, and is subject to the other’s right of control. He found the following:

  • The scholarship football players perform a service (playing football) for compensation (a scholarship)
  • The scholarship players’ commitments to play football in exchange for the scholarship constitutes a contract for hire
  • The scholarship players are under the control of the University for the entire year, including in-season and out-of-season workouts, restrictions on their entire personal life and detailed regulations players must follow at the risk of losing their scholarship

The Regional Director decided the NLRB’s 2004 Brown University decision, in which the NLRB found graduate assistants not to be employees of the university, to be inapplicable here because playing football is not part of the players’ academic degree program. However, he wrote that even if the Brown University test was applied, the scholarship football players would be found to be employees. He noted:

  • The scholarship players are not primarily students due to the 50-60 hours a week during the season that they devote to football
  • The scholarship players’ football “duties” do not constitute a part of their academic degree requirements
  • The academic faculty does not supervise the players’ football duties; rather, coaches who are not part of the faculty do so
  • The grant-in-aid football scholarship is not need-based like the financial aid other students receive but is given solely in exchange for playing football

The Regional Director rejected two additional arguments made by the University:

  • He decided the scholarship football players are not “temporary employees” (who are generally ineligible to participate in collective bargaining) because they work more than 40 hours a week during the season, work year round, expect to work for 4-5 years and play football as their prime consideration
  • He did not include the “walk-on” players in the bargaining unit. He found that they are not employees within the meaning of the NLRA because they do not receive a scholarship and are not subject to the conditions for its receipt

The University now has until April 9, 2014 to file a Request for Review to appeal the Regional Director’s ruling to the NLRB in Washington, D.C.

Article By:

Gregg E. Clifton
Paul V. Kelly
Of: 
Jackson Lewis P.C.