NCPA Files Misclassification Claim on behalf of California Student-Athletes

On February 8, 2022, the National College Players Association (“NCPA”) filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”) alleging that the University of California, Los Angeles (“UCLA”), the University of Southern California (“USC”) (together, the “Universities”), the Pac-12 Conference, and the National Collegiate Athletics Association (“NCAA”) misclassified Division I football and basketball players as student-athletes rather than employees of the university, denying them their rights under the National Labor Relations Act (“NLRA”).

The NCPA, a nonprofit organization advocating for the rights of college athletes, claims that unlawful rules and policies in the UCLA and USC handbooks have interfered with, restrained, and coerced student-athletes in the exercise of rights protected by Section 7 of the NLRA. These policies include restricting athletes’ social media posts and communications with third parties.

Section 2(3) of the NLRA covers “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment…” Because this definition is so broad, the NCPA contends that student-athletes qualify as employees. Indeed, the NCPA claims that the relationship of student-athletes to the Universities mirrors this definition in practice: If a student-athlete breaks any of the rules in the university handbook, they may be subject to disciplinary action that could cease their work.

Section 7 of the NLRA gives employees the right to self-organize, form or join other labor organizations, or otherwise engage in collective bargaining. By misclassifying student-athletes, the NCPA believes that the Universities have prevented student-athletes from exercising these statutory rights and protections, a direct violation of Section 8(a)(1) of the NLRA. As NLRB general counsel Jennifer Abruzzo argued in a September 2021 internal memo, student-athletes at private universities should be considered employees under the NLRA, thus granting them protection to form unions and engage in concerted efforts to improve their working conditions.

These actions follow the Supreme Court’s June 2021 decision in NCAA v. Alston, which held that the NCAA’s rules limiting education-related compensation violated federal antitrust law, specifically Section 1 of the Sherman Act. Some experts have theorized that Justice Kavanaugh’s concurring opinion in the case could result in further expansion of athletes’ rights under federal labor law, as Justice Kavanaugh specifically noted that “there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary rule of reason scrutiny.”

Updates will be posted to this blog as the matter progresses. The cases are University of Southern California (USC), Pac-12 Conference, and The National Collegiate Athletics Association (NCAA) and the National College Players Association, case number 31-CA-290326; and University of California Los Angeles (UCLA), University of California, Los Angeles (UCLA), Pac-12 Conference, and The National Collegiate Athletics Association (NCAA), case number 31-CA-290328, both before the National Labor Relations Board.

The legal team at Miller Shah LLP has significant experience representing employment matters. If you have any questions regarding this subject or this post, please contact John Roberts (jcroberts@millershah.com) or Alec Berin (ajberin@millershah.com). The firm can also be reached toll-free at (866) 540-5505.

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