The Powers That Be are determined to reclassify college athletes as employees who can organize and collectively bargain for their working conditions and compensation. This appears likely to happen, possibly within the next year.
A less certain path: Democratic senators recently reintroduced the College Athletes Right to Organize bill, which is aimed towards unionizing athletes who are compensated via scholarship by their schools. The current balance of Congress doesn’t guarantee that this bill would ever pass, but the NLRB aims to get there first, so let’s dig in.
General Council Jennifer Abruzzo’s crusade for this cause began in 2021 when she suggested that student-athletes are misclassified if they’re not considered employees under the NLRA. In early 2022, she welcomed entities to file unfair labor charges against the NCAA, and she preemptively invited college athletes to file for union elections. Biden’s board further argues that colleges are profiting in the billions from “players’ labor” while withholding workplace protections under the student-athlete label.
In December 2022, the NLRB opted to pursue unfair labor charges filed by the National College Players Association against the NCAA, the University of Southern California, and the Pac-12. As it currently stands, the results of these charges would only apply to private universities (which include USC). Yet Abruzzo argues that the NLRB could expand jurisdiction to all schools under the rationale that the NCAA, universities, and conferences are joint employers (oh, what a web that she is weaving) of college athletes.
The athletes’ perspectives: Recently, multiple USC athletes testified in front of a regional administrative judge about the extraordinary control that coaches and administrators exert over players, including biometric monitoring of their whereabouts, including whether they check into the dining hall, attend classes, and stay properly hydrated. These athletes hope that this degree of control will justify employee status.
Where the issue goes from here: Later this month, legal proceedings will continue with an administrative law judge hearing from athletes, university administrators, and other entities. Post-hearing briefs will follow with a decision arriving later this year. Don’t be terribly surprised if that decision eventually appeals all the way to the Supreme Court.
Where the Supreme Court sits on the issue: The Supreme Court’s previous 2021 ruling in NCAA v. Alston points toward the highest court in the land leaning towards granting employee rights to college athletes. As part of that unanimous ruling, conservative Justice Brett M. Kavanaugh notably likened the NCAA to a cartel-like, price-fixing organization that indulges in antitrust behavior while not properly compensating players.
Downsides of such an employee classification: This won’t be all roses for athletes if they achieve employee status. They would immediately be subject to federal taxation and, since they would technically be employed by universities, they could also be terminated as such. Universities could also face pesky downsides like losing access to student fees and charitable gifts via their Section 501(3)c designation, so athletic programs could lose substantial resources to pay these newfound employees.
Further, these college athletes would learn that unions often don’t deliver promised results. That nugget comes from the School of Hard Knocks.
