In an interview last January, ESPN chief football analyst Kirk Herbstreit made a statement: You can make college athletes employees, too.
“I’m saying we’re on the way to syndication,” he said on the “Sorry My Take” podcast. “There we go.”
Less than a year later, the movement to make college athletes employees of their universities has taken another important step.
The Los Angeles District of the National Labor Relations Board plans to pursue unfair labor practice charges against USC, Pac-12, and the NCAA as sole and joint employers of FBS football players and Division I men’s and women’s basketball players.
The National Association of College Actors announced the move 10 months after filing the charges against the NLRB office. The NCPA’s goal is to approve employee status for Division I basketball players, men’s and women’s, and FBS football players. The announcement publicizes a story from Sportico that was released last week.
A decision is still months away, but the NLRB’s latest move is, as expected, a giant leap forward in the fight for college athletes to become employees. Legal experts say the USC, Pac-12 and NCAA will soon be prosecuted to fight the charge.
“It’s big,” says Gregg Clifton, an Arizona-based sports attorney and former agent. “We’re going to do a trial on whether student-athletes are actually employees.”
NCPA executive director Ramogi Huma Huma said the NLRB’s decision will only apply to private schools for now. The NCPA withdrew the charge against UCLA, a public school, in its original filing.
This is the latest chapter in an athlete rights movement that created sweeping changes to archaic NCAA policies governing athlete compensation and transfer policies. Revived by the Supreme Court’s Alston ruling in June, the American sentiment began to turn in favor of the players rather than the principals, coaches, school administrators and conference officials.
Huma and the NCPA are confident they will make a final decision.
“Ultimately, this will end up in the Supreme Court,” Huma says. “And we’re confident about it. If it goes to the highest court in the country, we win.”
Clifton says it’s a long way to get there.
In the coming months, a hearing will be held before an administrative law judge, followed by post-trial briefings. Judge’s decision – college athletes working or not? – probably two to three months after the trial.
This decision can be appealed to the main five-person NLR Board in Washington DC, which currently holds a Democratic majority (3-2). The board’s decision can then be appealed, possibly to the Supreme Court or district courts.
It’s an important note that the main board leans towards Democrats, as liberal decision makers will tend to give employment rights to athletes, Clifton said.
In fact, last September, new NLRB general counsel Jennifer Abruzzo encouraged organizations to file unfair labor charges against the NCAA. In a note, he admitted college athletes as employees under the National Labor Relations Act, a strong message from the agency’s attorney general urging athletes and athlete advocates to petition to unionize. The NLRB is the independent agency that enforces US labor law in relation to collective bargaining.
Six years after the same board denied Northwest football players the right to unionize as employees, Biden’s presidential-appointed Abruzzo broke a door.
The NCPA opened the door.
“By definition, college athletes are employees under the employment law,” Huma said. sports illustrated last year. “They are skilled workers in their sport and they get scholarships. Like any American, they deserve the rights granted to them by the labor laws.”
Illinois law professor Michael LeRoy, who has published extensive work on labor policy, believes this is an extension of the Northwest football player’s attempt to unionize in 2015. Since then, the NLRB has broadened the definition of an employer to allow for unionization to occur in college sports, creating the possibility of more uniformity, he says.
In 2024, USC starts playing in the Big Ten, which means the league will likely replace the Pac-12 under the responsibility of the NLRB.
“I don’t think this will result in unionization any time soon,” says LeRoy. “But that’s a problem that falls into the Big Ten’s lap because USC is entering the Big Ten. Crucially, this will keep the employment of college athletes in the news and put secondary pressure on lawmakers to pass a collective bargaining law for college athletes.”
The NCPA’s filing required fees from both a private school (USC) and a public school (UCLA) — a strategic move. The NLRB only has jurisdiction over private employers, but Abruzzo argued that conferences and the NCAA are co-employers of athletes, so the NLRB’s jurisdiction could expand to include all schools.
The athlete-worker issue, the latest surge in the NCAA’s ocean of change, has long been debated. Last September, at a meeting of athletic directors in Washington, D.C., Jack Swarbrick of Notre Dame AD told a group, “A student-athlete employee will be announced this school year, somewhere in the legal world or at the administrative level.”
Many college administrators have stood in line in the fight against the employee making of athletes. Pac-12 commissioner George Kliavkoff opposed the need for college athletes to be employees, in an interview with a Portland radio station last January.
“They are students first, then athletes. This is non-negotiable for me,” he said. “The natural consequence of counting student-athletes as workers is very dangerous. It also means less investment in other unprofitable sports.”
Given the Supreme Court’s Alston decision, the implementation of the NIL, the restructuring of the NCAA, and perhaps most importantly, the Democrat-controlled White House and Senate, now is the ideal time for athletes to be considered employees.
Beyond the NLRB, there are several ways athletes can be managed as employees, including a class action lawsuit from Pennsylvania: Johnson and the NCAA. In Congress, Democratic Sens. Chris Murphy and Bernie Sanders introduced the College Athletes’ Right to Organize Act. At the state level, laws have been passed to prevent or give athletes the right to become employers of their schools.
“Every day the status quo seems more unsustainable,” Tulane sports law professor Gabe Feldman told SI last spring. “There are likely to be some major changes in the near future. The consensus is: Athletes should be given more. Question: How do we do that while keeping the foundation of college sports?
It is rather unclear how the majority of Division I athletes themselves feel about being employees. While former college basketball star Jordan Bohannon has made his own statement about the final move, no athlete or group of athletes has filed a charge against the NLRB.
“As a G-League basketball player, I’m clearly an employee and doing what I did for the University of Iowa a few months ago,” said NCPA Athletes Board Member Bohannon. “The difference is that I now have employee rights under labor law and protections under collective bargaining agreement. NCAA sports have used the words “student-athlete” and “amateur” to circumvent labor laws and deny fair treatment to college athletes for generations. This NLRB decision is an important step towards much-needed change.”
Tom McMillen, president of Lead1, a DC-based organization that represents FBS athletic directors, said many executives opposed the idea of turning college athletes into employees, but many knew what was going to happen.
Some administrators believe the solution lies in the nation’s capital, where a Congressional bill could open up a legal avenue for schools to provide athletes with collective bargaining rights and even revenue-sharing provisions. Others suggest that perhaps higher education and college athletics are heading towards divorce.
“Everyone wants college football and basketball to be a part of higher education,” an administrator told SI last year. “I don’t know if we can keep up.”
Mit Winter, a Kansas City-based sports attorney and himself a former college basketball player at William & Mary, believes that the future of college sports is likely to be separate from its schools.
“I don’t know if universities, conferences and the NCAA want to join a system where they bargain collectively with athletes. It remains to be seen,” he says. “There are different models where sports teams leave school and have their own independent existence.”
Seeing college athletes as employees will have far-reaching effects on both the athletes themselves and their universities. Athletes would be received rudely in the world of federal taxation. They may even risk being terminated by their new employer, the school.
Schools may lose their Section 501(3)c designation, which affects taxation on bond financing and charitable donations. Student fees and public support? Experts say these can also disappear.
This is a complex issue. Grouped by other changes that are rapidly changing the landscape of the industry, such as a freight train, one athletics director says she’s gravitating towards varsity sports—some for the better; For the worse, tell the others.
“Employee status is not a guarantee of better benefits, but it will certainly empower athletes to negotiate for better benefits,” Feldman said. “Whatever the road, the road has its downsides. I don’t think any solution will necessarily be perfect. Every win for one athlete can result in less for another athlete.”