LOS ANGELES – The future of collegiate athletics, for all anyone knows, was sealed a decade ago in a slew of union ballots that has never seen the light of day.
Let’s travel back here for a moment to 2015, when a long-suffering labor movement by Northwestern athletes chasing employee status – led by quarterback Kain Colter – steamrolled all the way to the National Labor Relations Board (NLRB). According to a Sports Illustrated story a few years ago, players had assembled in 2014 at a hotel to cast votes in favor of unionizing. But in August a summer later, the NLRB unanimously declined to assert jurisdiction – anticlimactically ending a landscape-changing movement.
Eight years later, Jodi Balsam, a professor of clinical law at Brooklyn Law School and an expert on sports law, speaks of that union vote as if she’s Indiana Jones discussing a mystical artifact.
“When they vacated the decision, we never found out what happened in that ballot,” Balsam told the Southern California News Group.
Here’s the kicker, though: the NLRB came to that decision because it would essentially be too complicated to promote labor rights at one university, but not across an entire Big Ten conference or the NCAA. Importantly, they never ruled on whether or not those athletes were, in fact, employees.
“I think the NLRB’s approach to this issue has evolved … and that those prudential objections,” Balsam said, “will no longer present an obstacle to finding employee status.”
This is all relevant, ultimately, because of a quietly earth-shattering complaint being brought by the NLRB against USC, the Pac-12 and the NCAA arguing USC’s “student-athletes” should be classified instead as employees. After an initial hearing on Zoom in early November, the trial will resume with in-person witness testimony on Monday.
It’s a case that could spiral into the weeds, a process likely to drag through appeals and discovery that Michael LeRoy – a professor of labor and employment relations at the University of Illinois – estimates could take anywhere from three to seven years. But that process will be hugely important in the direction of collegiate athletics. If the NLRB eventually rules in favor of classifying USC athletes as employees, it would set a precedent for players to be able to unionize and collectively bargain for wages and other protections at private universities.
It’s a complicated case, with a multitude of layers. The NLRB is arguing that USC athletes are not just employees of the university, but also jointly employed by both the Pac-12 and NCAA, which will undoubtedly be more difficult to prove. But legal experts who spoke with the Southern California News Group expect wholeheartedly that – at a baseline – the NLRB’s board will rule in favor of classifying USC athletes as employed by the university.
And that will open doors to change everything about the way USC currently operates.
“I think USC and the Pac-12, and eventually the Big Ten, I think they’re playing a losing hand,” LeRoy said. “Because no rational person … would look at this situation and buy the argument that USC football is an amateur operation.”
Here’s a breakdown of the background, and legal intricacies, within a monumental case.
How the case came to be
In Sept. 2021, Jennifer Abruzzo – tabbed just a few months earlier by President Joe Biden as the NLRB’s general counsel – issued a memo advising her prosecutorial stance on collegiate athletes as having full employee rights under the National Labor Relations Act.
That opened a door for Ramogi Huma, once a football player at UCLA and formerly on the front lines of the Northwestern fight, and the organization National College Players Association (NCPA) to file a complaint in 2022 against USC, UCLA, the Pac-12 and the NCAA to the NLRB – a complaint LeRoy said had to arise from athletes coming forward to discuss forming a union.
Eventually, Huma and the NCPA decided to drop charges against UCLA due to its status as a public university. And after a few months of investigation, the NLRB decided to file an official complaint in May that set the case against USC into motion.
What’s at odds
In that May memo, Abruzzo called for USC, the Pac-12 and the NCAA to “cease and desist from misclassifying the Players as non-employee ‘student-athletes.’”
Thus, the definition of “amateurism” that the NCAA has long fought tooth and nail to uphold is key. And that’s likely what USC’s central argument will center on in this case, LeRoy said – trying to justify and emphasize the “student” aspect of the “student-athlete” label.
When asked for comment on the case in late October, a USC spokesperson pointed back to a statement in May made after the NLRB’s original filing of its complaint.
“This complaint is neither new nor surprising; it simply perpetuates a position that the National Labor Relations Board erroneously staked out many months ago, and which would significantly undermine the educational experiences of our student-athletes,” that statement began.
In one subtle chess move in early December, USC issued a motion alleging that the revenue generated by the football program and “salary of alleged supervisors” – which could include head coach Lincoln Riley, among others – wasn’t relevant to the case.
Legal experts, though, see the wealth generated by USC’s athletics as highly important, if not central to the case.
“The fact that a university activity generates revenue, and that it pays many of the contributors to generating that revenue – including coaches, including ticket-takers, concessionaires, parking-lot attendants – and the only person that does not compensate or does not consider employees are the athletes on the field,” Balsam said, “I think is highly relevant, and they need to justify that given the revenue that’s generated.”
Protections at stake
If the NLRB ruled in favor of classifying USC athletes as employees, it would pave the way for players to form a union, if they so choose. And a union, Balsam described, would force USC to have to negotiate a labor contract with players, ripe with a variety of details that would include wages and protections.
It would pave a variety of roads toward an agreement similar to professional sports, legal experts envision: a salary cap and a free-agency period in place of the transfer portal. And collective bargaining, too, would be beneficial for the NCAA at some level, protecting the entity from a host of antitrust lawsuits.