NLRB sues colleges, says athletes are workers

NLRB General Counsel Jennifer Abruzzo, shown here with Justice Department official Jonathan Kanter, sued in federal court in Los Angeles against the NCAA, the Pac-12 conference and several colleges, for unfair labor practices preventing collegiate athletes from being employees--and organizing--under labor law. | Justice Department photo

LOS ANGELES—The big business of college sports is back in federal court again. And this time it’s over the right of the athletes to organize.

That’s because the National Labor Relations Board’s top enforcement official, General Counsel Jennifer Abruzzo, sued the National Collegiate Athletic Association, the Pac-12 conference, and several colleges to court in federal court in Los Angeles, seeking approval of its stand that college athletes are “employees” and have the right to organize under labor law.

The NCAA and its member colleges, both public and private, have for decades called the players “student-athletes” and used that concept—which is really a fig leaf for a $4 billion business– for decades to argue the players, especially in the big-time revenue sports of football and men’s and women’s basketball, are athletes and students and not “employees.”

The coaches, athletic directors, and the NCAA, most of whom are older white guys, especially in football, benefit. The players, most of whom are people of color, again, especially in football, don’t.

Abruzzo, in a memo last year and now in court, says they’re employees with workers’ rights.

The vehicle for the lawsuit is to declare the NCAA, the conferences, and the colleges, including public and private colleges, are “joint employers” under labor law, responsible for jointly obeying it when they deal with their employees—the athletes—or breaking it.

Which is what the National Collegiate Players Association, a labor-backed organization of the athletes, argued when it filed a labor law-breaking, formally called unfair labor practices, complaint with the board and against the NCAA, the conferences, and the member colleges.

“College athletes meet the definition of ‘employee’ under labor law,” NCPA Executive Director Ramogi Huma, a former UCLA football player, said in a statement. “They are highly skilled in their sport, paid scholarships and stipends to perform athletic services, and they perform their work under extensive control of their employer.

“These athletes deserve every right afforded to them under labor laws–just like other hard-working Americans.”

Previously, the NCAA tried to prevent individual players from bargaining for a cut of the advertising swag the colleges, the coaches, the colleges, conferences, and the association rake in annually from corporate sponsorships which use the players’ “name, image and likeness,” to sell everything from basketball sneakers to sports cars.

The NCAA and its members, battling the athletes all the way, and losing all the way, finally went to the U.S. Supreme Court. In November 2021, the court’s nine justices, acting as referees, so to speak, blew the whistle against the NCAA on antitrust grounds.

The justices ruled the NCAA broke anti-trust law by barring the players from seeking and getting any name-image-likeness money. Writing for the unanimous court, Republican-named Justice Neil Gorsuch called the NCAA and the colleges “commercial enterprises” subject to anti-trust laws.

Though the laws involved are different and the NLRB is involved this time, the only change in the court’s lineup since Gorsuch’s ruling has been the retirement of progressive Justice Stephen Breyer with the court’s first Black woman justice, Ketanji Brown Jackson. As a lower-court judge, she consistently sided with workers.

The name-image-likeness case didn’t deal with working conditions, such as long hours at practice which force the students to put sports ahead of studies, stipends and scholarships which don’t cover all the workers’ costs and which can be terminated at a coach’s whim, and no workers’ comp insurance for players who suffer career-ending injuries on the playing or practice fields.

Before that, the NCPA tried to solve the working conditions issue by organizing football players at Northwestern University, just outside Chicago, as a first step towards organizing elsewhere. They won at the board’s regional office, but the full board ducked the issue.

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CONTRIBUTOR

Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.