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.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
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.

He 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.

He negotiates major collective bargaining agreements in several industries, including real estate and construction. Paul 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 2023, he helped the RAB reach a new collective bargaining agreement with SEIU Local 32BJ, covering 20,000 commercial building employees, enabling the industry to adapt its labor practices to tenants’ post-COVID utilization of office space, including that caused by remote/hybrid work.

Paul has long represented construction employers and developers, such as the Related Companies, Cement League, Association of Master Painters and others. He negotiates Project Labor Agreements (PLA’s), such as for Related (enabling the construction of Hudson Yards), and presently for Gateway Development Corporation (GDC) in building the New York-New Jersey train tunnels, the largest infrastructure project in America. City & State magazine has named him one of the most powerful lawyers in New York for his work in this sector.

Paul also tries arbitrations and litigations, and argues appeals, arising from labor-management relationships. He 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 that a collective bargaining agreement explicitly requiring unionized employees to arbitrate employment discrimination claims is enforceable, modifying 35 years of labor law. Unions and employers now negotiate “Pyett clauses” in collective bargaining. He has argued and won federal circuit court cases reversing the National Labor Relations Board’s findings against employers, including in the D.C. and Fifth Circuits.

Paul represents universities and colleges in their labor and employment relations, including in the currently active areas of unionization and collective bargaining with graduate students, undergraduates, athletes and adjunct faculty. Among other schools he has worked with are Yale, Duke, Chicago, Washington University in St. Louis and Caltech. Paul pioneered innovative non-NLRB graduate student union election agreements at Cornell, Brown and Syracuse 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. He subsequently was elected Trustee Emeritus and Presidential Councilor. He 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 during his tenure 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.

An active speaker and writer on labor and employment law issues, Paul’s recent publications include “One Dozen Years of Pyett: A Win for Unionized Workplace Dispute Resolution” in the American Bar Association Labor & Employment Law Journal (“ABA Journal”), Volume 36, Number 2 at 257, and “The PLA Alternative in an Increasingly Open Shop New York City Construction Market: The REBNY-BCTC Statement of Principles,” Volume 37 ABA Journal, Number 3 at 415. He is an Adjunct Professor at Cornell Law School, teaching “Current Issues in Collective Bargaining.”

Photo of Adam Lupion Adam Lupion

Adam Lupion is a partner in the Firm’s Labor & Employment department and a member of the Labor Management Relations, Sports Law and Employment Litigation Groups. Widely recognized as a leading labor and employment attorney, Adam has been named a “Power Player” by …

Adam Lupion is a partner in the Firm’s Labor & Employment department and a member of the Labor Management Relations, Sports Law and Employment Litigation Groups. Widely recognized as a leading labor and employment attorney, Adam has been named a “Power Player” by Sports Business Journal, a Top 50 L&E Litigator” and “Labor & Employment Star” by Benchmark Litigation, as well as numerous other accolades.

A trusted litigator and counselor, Adam has developed a particular expertise representing sports leagues and teams. He has been at the center of many of the most significant labor and employment matters in the sports industry.

For example, Adam helped guide Major League Baseball (MLB) through its most recent work stoppage with players, represented MLB in grievance arbitrations challenging player discipline for violations of the league’s domestic violence and drug policies, successfully defended MLB against discrimination claims brought by Angel Hernandez, and defended MLB and its member Clubs in class and collective actions involving pay practices of minor league players and claims of age discrimination by scouts. In addition, Adam has handled several litigations and arbitrations for the National Hockey League and National Football League, and has advised college athletic conferences and universities across the broad spectrum of labor and employment laws.

Adam also leads the Firm’s MLB Salary Arbitration practice, and is one of the most sought-after practitioners to represent Clubs during contract negotiations and at arbitration hearings against some of the game’s most prominent players.

Adam’s practice extends far beyond the world of sports, as he has extensive experience representing healthcare, higher education, financial services, 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.

He has lectured on labor and employment law at Cornell University, New York University School of Law, and Cardozo Law School. He 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.