National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo filed a long-anticipated complaint on May 18, 2023 against the University of Southern California (USC), the Pac-12 Conference, and the National Collegiate Athletic Association (NCAA), alleging that their failure to use the term "employee" to refer to student-athletes in the university's student athlete handbook and related social media policies intentionally discourages student athletes from exercising their alleged Section 7 rights as employees under the National Labor Relations Act (NLRA). Section 7 gives covered employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."
The GC's complaint does not allege that any USC coach or athletic administrator took any specific actions to threaten, intimidate, or restrain any USC student or student athlete, or, conversely, that any USC student athlete attempted but was prevented from taking any actions that might otherwise be protected by the NLRA if they were in fact employees.
In keeping with the basis of her allegations, General Counsel Abruzzo refuses in the complaint to refer to USC's student athletes as either "students" or "athletes," instead calling them "Players at Academic Institutions" or "Players." This is consistent with the terminology Abruzzo used in a September 29, 2021 General Counsel Memorandum (GC 21-08) that asserted her position that student athletes should be treated as employees for all purposes under the NLRA
Further, the GC's May 18 complaint asserts that USC, the Pac-12, and NCAA are joint employers of the student-athletes because the NCAA and Pac-12 allegedly have control over USC's labor relations polices and/or administer a common labor policy with USC with respect to the student-athletes. Generally, joint employers may be held liable for each other's unfair labor practices and other obligations under the NLRA.
As a remedy, the GC is seeking an order from the NLRB that USC, the Pac-12, and the NCAA reclassify the "student athletes" as "employees" in their files, handbooks, and rules.
The complaint was filed by the NLRB's Region 31 and directs Respondents USC, the Pac-12, and NCAA to answer the complaint's allegations by June 1 and also to appear for a hearing before an administrative law judge on November 7, 2023, in Los Angeles.
The implications of this case are significant for both private and public colleges and universities. As indicated in GC 21-08, the GC is pursuing a joint employer theory of liability in this case, claiming that student athletes "perform services for" and are "subject to the control of" not only USC, but also the Pac-12 and the NCAA. Under this joint employer theory, the NLRB GC is likely attempting to lay a foundation for asserting that public colleges and universities should also be subject to the NLRA as joint employers with the NCAA and their respective athletic conferences.
Although this complaint focuses on higher education, all employers should closely monitor the NLRB GC's continued expansive interpretations of the NLRA and related guidance to the regions.
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