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The NCAA, the Pac-12 Conference and the University of Southern California on Thursday forcefully pushed back against a complaint from the National Labor Relations Board’s Los Angeles office that alleges they have unlawfully misclassified college athletes as “student-athletes” rather than employees.
In separate answers to the complaint — which specifically applies to athletes in football, men’s basketball and women’s basketball — the three entities provided an array of reasons that the case should be dismissed, including one connected to the First Amendment.
USC’s version expressed that argument in the following terms:
“ … enforcement of any Order from the Board to prohibit USC from using the phrase ‘student-athletes’ and/or to compel USC to use some other words to describe its students who are members of its intercollegiate sports teams, including football or women’s or men’s basketball, would amount to compelled governmental speech in violation of the First Amendment.”
The case is set for a hearing before an administrative law judge, beginning on Nov. 7.
The NCAA, the Pac-12 and USC offered similar reasoning Thursday concerning what they contend are legal limits on the National Labor Relations Board’s (NLRB’s) reach in this matter. Lawyers for USC wrote that Congressional action to change the National Labor Relations Act would be required “to support the momentous expansion in the scope” of the law that would occur if the NLRB were to decide it has jurisdiction over college sports.
An effort to unionize football players at Northwestern University ended in August 2015, when the NLRB said that because the board has no jurisdiction over public schools, addressing the Northwestern effort would run counter to the National Labor Relations Act’s charge that the board create stable and predictable labor environments in various industries.
The NCAA argued Thursday the Northwestern decision prevents the NLRB from “relitigating the issue of jurisdiction … because there have been no changed circumstances in the law sufficient to warrant the Board’s departure from” that decision.
However, the complaint in this case aims to resolve that issue by alleging that the NCAA, the Pac-12 and USC are joint employers of the athletes. If the NCAA and the Pac-12 are determined to be joint employers with USC, because the NCAA and the Pac-12 include public schools, the case could apply to athletes at both public and private schools.
One significant aspect of this determination will be an assessment of the degree to which the three entities subject athletes to their control. As evidence of USC’s control, the complaint included excerpts from the USC athletics department’s Student-Athlete Handbook and its Social Media Policy & Guidelines for Student Athletes, which set a variety of rules that complaint claimed the athletes must follow.
USC argued that it was a “mischaracterization” for the complaint to allege that the language in either publication “represents mandatory ‘rules’ for student-athletes.”
While the Pac-12 and NCAA asked for the case’s dismissal, USC also asked that the NLRB grant the school “such other relief as is just and proper.”
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