On May 18, 2023, Region 31 of the National Labor Relations Board (“Board”) issued an unfair labor-practice complaint against USC, the PAC-12, and the NCAA for allegedly misclassifying college athletes as non-employees and suppressing their Section 7 rights under the National Labor Relations Act (“Act”).

While significant, this development comes as no surprise:  As we covered here, Region 31 issued a finding of merit in this case in December 2022, which under Board procedure, signals that complaint will issue if the parties cannot reach a settlement.

And before that, in September 2021 (as we also covered here), NLRB General Counsel Jennifer Abruzzo—who guides and oversees prosecutorial decisions across all Board Regions, including Region 31—issued a memorandum asserting that college athletes are employees under Section 2(3) of the Act; announcing that the Board would pursue unfair labor practice charges in appropriate cases against universities that fail to classify student athletes as employees under the Act; and instructing the Regions to submit all cases involving the misclassification of college athletes to the Board’s Division of Advice (enabling GC Abruzzo and her office to help shape policy on this issue).

The charges at issue here were initially filed in February 2022 by the National College Players Association (“NCPA”), a nonprofit advocacy organization, which claimed that USC—along with alleged joint employers, 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.  A Board determination that college athletes are employees could lead to a renewed effort by college athletes to organize and join a labor union for purposes of collective bargaining, as well as expose universities to potential liability under the Act for conduct engaged in vis-à-vis college athletes.

A critical component of Region 31’s complaint is its allegation that the PAC-12 and NCAA—the athletic conference and governing body of which USC is a member—are, along with the university, joint employers of college athletes at USC.  Indeed, a determination that PAC-12 and the NCAA are joint employers of college athletes not only could subject both entities to potential liability under the Act (both at USC and other universities) but also could establish a possible legal basis for college athletes to seek to collectively bargain at the conference (or NCAA) level—setting up a potential end-run vis-à-vis the Act’s coverage-exemption for public-sector employers, such as public/state universities.

The next major step will be a hearing before an ALJ, scheduled for November 7, 2023. If filed, an appeal would be heard by the Board, then to the U.S. Circuit Court of Appeals, and lastly to the U.S. Supreme Court.

We will continue to monitor and provide updates to this and other cases addressing the status of college athletes.

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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.