On December 15, 2022, the Regional Director of the Los Angeles Region of the National Labor Relations Board (“NLRB” or “Board”) found “merit” in the unfair labor practice charges filed by football and men’s and women’s basketball players against the University of Southern California (“USC”), the Pac-12 Conference, and the NCAA.

The charges raise the potentially important question whether college athletes should be deemed to be “employees” entitled to protections under the National Labor Relations Act (“NLRA” or “Act”). Such a determination could lead to a renewed effort by college athletes to organize and join a labor union for purposes of collective bargaining.  In addition, colleges and universities (and potentially, athletic conferences and the NCAA) could be held liable for violations of the Act with respect to conduct engaged in toward college athletes.

The charges at issue here were initially filed in February 2022 by the National College Players Association (“NCPA”), a nonprofit advocacy organization, which alleged that USC, the Pac-12, and the NCAA misclassified college athletes as “non-employees,” and suppressed their Section 7 rights under the Act, including the right to speak about compensation and working conditions.

This case comes nearly eight years after Northwestern University football players’ petition to unionize.  Then, after the Chicago Regional Director of the NLRB ruled that players receiving athletic scholarships are “employees” under the Act, the full Board ultimately declined jurisdiction on separate grounds, ending the players’ unionization drive, but leaving open the question of whether college athletes are “employees” under the NLRA.

In September 2021, NLRB General Counsel Jennifer Abruzzo stated in a memo that her position is college athletes are “employees” and entitled to protections under the NLRA. GC Abruzzo instructed the Board’s Regional Offices to treat “Players at Academic Institutions” as employees that have the right to join a labor union, paving the way for the charges that the NCPA filed in February.

Based on the NLRB General Counsel’s prosecutorial directive, the Regional Director’s determination to issue a Complaint in this matter is not surprising.  The next steps are a trial before an Administrative Law Judge in the coming months, which likely will address the “employee” status of college athletes under the Act;  whether the conference and NCAA have any potential liability under a “joint employer” theory; and whether, based on the facts as they are developed, those bodies violated the Act with respect to the college athletes.  The losing party will have the right to appeal to the Board, with potential subsequent appeals of rulings to the U.S. Circuit Court of Appeals and, possibly, the U.S. Supreme Court.

Of course, USC, the Pac-12 and the NCAA have significant defenses to the unfair labor practice charges.

The employee status of college athletes is also at issue in a case currently pending before the Third Circuit Court of Appeals, Johnson et al. v. NCAA et al., involving a different federal statute, namely the Fair Labor Standards Act.  We will continue to monitor these and other cases relating to the legal status of college athletes.

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Photo of Paul Salvatore Paul Salvatore

Paul Salvatore provides strategic labor and employment law advice to companies, boards of directors/trustees, senior executives and general counsel in such areas as labor-management relations, litigation, alternative dispute resolution, international labor and employment issues, and corporate transactions.

Paul negotiates major collective bargaining agreements…

Paul Salvatore provides strategic labor and employment law advice to companies, boards of directors/trustees, senior executives and general counsel in such areas as labor-management relations, litigation, alternative dispute resolution, international labor and employment issues, and corporate transactions.

Paul negotiates major collective bargaining agreements in several industries, including real estate and construction. He represents the NYC real estate industry’s multi-employer organization, the Realty Advisory Board on Labor Relations (RAB), and its principal trade organization, the Real Estate Board of New York (REBNY). In 2022, he helped the RAB reach a new collective bargaining agreement with SEIU Local 32BJ, covering more than 30,000 residential building employees. Paul also represented the Cement League, a multiemployer group of NYC area superstructure contractors, in halting an illegal strike by the Carpenters Union and negotiating a significant new, more competitive, collective bargaining agreement. He previously negotiated, on behalf of The Related Companies with 18 New York City construction unions, a landmark project labor agreement (PLA) for Hudson Yards on Manhattan’s West Side, the largest private real estate development in U.S. history. In 2019, he assisted Related in resolving the very public labor disputes at Hudson Yards in time for its grand opening. He also represented REBNY in negotiating its 2019 landmark “Statement of Principles” with NYC’s construction unions. For his work in this sector, City & State magazine has named him one of the most powerful lawyers in New York.

Paul tries arbitrations and litigations, and argues appeals, arising from labor-management relationships. Paul argued and won before the U.S. Supreme Court 14 Penn Plaza LLC v. Pyett. In a 5-4 decision of importance to employers, the Court held a collective bargaining agreement that explicitly requires unionized employees to arbitrate employment discrimination claims is enforceable, modifying 35 years of labor law. In 2016, he argued and won NBC Universal Media, LLC v. NLRB, where the D.C. Circuit — rejecting the National Labor Relations Board’s (NLRB) analysis — found “the reasoning supporting the [NLRB’s] judgment … incomprehensible.” In 2017, Paul argued and won T-Mobile v. NLRB where the Fifth Circuit refused to enforce the NLRB’s ban on certain common sense employee handbook policy provisions, finding the NLRB’s analysis to be unreasonable.

Paul represents universities and colleges in their labor and employment relations, including in the currently active areas of graduate student and adjunct faculty union organizing. He represented Yale, Duke, Chicago, Washington University in St. Louis and other universities in their response to graduate student unionization after the NLRB’s controversial 2016 decision finding graduate teaching/research assistants to be employees under the labor law. He has negotiated innovative non-NLRB election agreements at Cornell and Brown Universities.

An honors graduate of Cornell’s School of Industrial and Labor Relations (ILR) and the Cornell Law School, Paul served eight years on Cornell’s Board of Trustees, including on its Executive Committee. Upon completion of his terms, he was elected Trustee Emeritus and Presidential Councilor. Paul presently serves as a Trustee Member of the Board of Fellows of Weill Cornell Medicine, as well as on the Law School and ILR Deans’ Advisory Councils. In 2002, ILR awarded him the Judge William B. Groat prize, the school’s highest honor.

At Proskauer, Paul was elected to its Executive Committee and served as co-chair of its global Labor & Employment Law Department, named by The American Lawyer and Chambers USA as one of the premier U.S. practices. He is widely recognized as a leading U.S. labor and employment lawyer in such publications as Chambers Global and USA (Band 1), and Legal 500 (“Hall of Fame”). The National Law Journal selected Paul as one of “The Decade’s Most Influential Lawyers” – one of only three in the labor and employment law field. His peers elected him to the College of Labor and Employment Lawyers.

Paul counsels business groups, including the U.S. Chamber of Commerce and its Litigation Center. An active speaker and writer on labor and employment law issues, his publications include “One Dozen Years of Pyett:  A Win for Unionized Workplace Dispute Resolution” in the American Bar Association Labor & Employment Law Journal, Volume 36, Number 2 at 257. He is an Adjunct Professor at the Cornell Law School.

Photo of Adam Lupion Adam Lupion

Adam is a trusted litigator and counselor in all areas of labor and employment law, with a particular expertise representing professional sports leagues and teams.

Clients count on Adam to handle their most complex, sensitive and high profile matters. Whether it is a…

Adam is a trusted litigator and counselor in all areas of labor and employment law, with a particular expertise representing professional sports leagues and teams.

Clients count on Adam to handle their most complex, sensitive and high profile matters. Whether it is a dispute involving a superstar athlete, bargaining with powerful labor unions, defending class and collective actions, or litigating discrimination and harassment claims, Adam knows how to deliver results for his clients efficiently and effectively.

Recently, Adam has defended Major League Baseball and its member Clubs in class and collective actions, and the National Hockey League in concussion-related and wrongful death claims brought on behalf of former players. Outside of the courtroom, Adam has advised numerous sports leagues in connection with collective bargaining negotiations with players and in-game officials.

Adam also heads up the Firm’s Major League Baseball Salary Arbitration practice, representing a number of Clubs during contract negotiations and at arbitration hearings.

Adam’s practice extends far beyond the world of sports, as he has extensive experience representing financial services, healthcare, media and entertainment, telecommunications, energy, retail and hospitality clients in a wide variety of labor and employment law matters in state and federal court, and before administrative agencies.

Adam has lectured on sports and the law at Cornell University, and frequently represents the Firm and the Sports Law Group on panel discussions and at career seminars for current and prospective lawyers.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Alexander J. Blutman Alexander J. Blutman

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment Law and Co-Producer of the Harvard Law School Parody. While at Harvard, Alex spent time as a legal intern with the UNLV Athletics Department, Special Olympics International, and the National Football League.

Prior to law school, Alex worked as a paralegal at an Am Law 100 law firm. He graduated from Duke University, where he served as a student-manager for the men’s basketball team.