Originally Published on offthecourtdocket.com.
The National College Players Association (NCPA) has filed charges with the National Labor Relations Board accusing the NCAA, Pac-12, UCLA, and USC of unlawfully violating the National Labor Relations Act (NLRA). Specifically, the NCPA has accused the parties of misclassifying college football and basketball players as non-employees when the players should be classified as employees.
The NCPA is a nonprofit advocacy association that includes current and former college athletes. The NCPA has advocated successfully on behalf of student-athletes since 2001. The organization’s advocacy efforts have led to changes to NCAA rules, including allowing for athletes to compensate off their Name, Image, and Likeness and new transfer rules. The charges filed with the NLRB could pave the way for athletes to unionize.
On September 15, 2021, the NLRB’s General Counsel, Jennifer Abruzzo, issued a memorandum taking the position that student-athletes are employees under the NLRA and thus afforded all statutory protections. Abruzzo’s memorandum was supported by the United States Supreme Court’s decision in NCAA v. Alston, which found that the NCAA rules limiting education-related compensation violated the Sherman Act.
The NCAA is currently battling a similar issue in Johnson v. NCAA. Judge Padova has recently elevated employer-employee issue in Johnson to the U.S. Court of Appeals for the Third Circuit. The Court must decide the following:
“Whether NCAA Division I student athletes can be employees of the colleges and universities they attend for purposes of the Fair Labor Standards Act, solely by virtue of their participation in interscholastic athletics.”
Any ruling is likely to make its way to the United States Supreme Court. In light of the majority opinion in Alston and Justice Brett Kavanaugh’s concurring opinion, it is likely that the Supreme Court will find that student-athletes are employees under the Fair Labor Standards Act.
In 2021, student-athletes gained a significant victory when the Supreme Court ruled against the NCAA in Alston. Now, with the NCPA filing charges with the NLRB and Johnson heading to the appellate level, student-athletes could see further gains in the near future.
Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com.
