As the holidays (and the College Football Playoff!) approach and the NCAA continues to push for federal Name, Image, and Likeness (NIL) legislation, current and former student-athletes are arguing their cases to the federal courts, White House, and the National Labor Relations Board (NLRB).
Potentially groundbreaking hearings in NLRB Region 31 (covering the Los Angeles area) began on November 7, 2023, regarding allegedly unfair labor charges. The outcome of the hearings, arising out of claims brought by athletes against respondents including the University of Southern California (USC), the Pac-12 Conference (Pac-12), and the NCAA, may dictate whether these entities should be considered “joint employers” who systematically misclassify employees as “student athletes,” as the athletes argue.
Administrative law judge Eleanor Laws is presiding over the hearings. If ALJ Laws decides that the athletes should be classified as employees, the respondents will have a new set of legal issues to consider under the Fair Labor Standards Act (FLSA), including minimum-wage and overtime compensation obligations (subject, of course, to appeal). Furthermore, if the athletes prevail, other hurdles for the respondents could include developing compliance measures related to social security, workers’ compensation, health and safety protections, ensuring protections against discrimination and harassment, and recognizing a statutory right to unionize and collectively bargain for a share of collegiate sport revenues. While ALJs are independent decision-makers, NLRB General Counsel Jennifer Abruzzo has already indicated that, in her opinion, certain players at colleges and universities should qualify as employees of their institutions. The hearings could last until February 2024.
While the decision in this case would only directly affect the parties to the action, other athletic conferences and universities are almost certainly interested in the outcome, given that similar claims could be brought against them, in which the judge’s order could be cited as persuasive authority.
The NLRB case is not the only major legal action concerning NIL. As our colleagues covered in detail, on November 3, 2023, Judge Claudia Wilken of the U.S. District Court for the District of Northern California certified three classes seeking to recover compensation for use of their NIL. The plaintiffs in that case, including Power Five conference players in football, men’s basketball, and women’s basketball, have demanded back pay related to the use of their NIL during television broadcasts. A favorable ruling could result in more than $4 billion in damages.
Outside the courtroom, President Biden and other White House officials met with former college football players to discuss the rights of college athletes. In the meeting, former players reportedly presented their cases for player safety, compensation to student-athletes, Title IX, and unionization. Notably, however, neither Biden nor his staff made any commitment to push for passage of any of the bills currently pending in Congress or for any other legislation or regulations.