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The original was posted on /r/cfb by /u/InVodkaVeritas on 2023-10-27 05:15:36.

USC’s Upcoming Schedule is a tough one:

  • October 28 - @ Cal
  • November 4 - vs Washington (5)
  • November 7-10 - @ NLRB (∞)
  • November 11 - @ Oregon (8)
  • November 18 - vs UCLA (23)

The toughest matchup coming up is not on the football field, it comes on Tuesday, November 7th through Friday, November 10th vs the NLRB in the Courtroom. Here’s what you need to know.

What is the NLRB?

The National Labor Relations Board (NLRB) is an independent agency of the federal government of the United States that enforces U.S. labor law in relation to collective bargaining and unfair labor practices.

The NLRB is the government entity empowered to investigate complaints of unfair labor practices and issue fines and sanctions against employers for not treating employees fairly.

What set things off:

USC issued a policy restriction on student-athlete interactions with the media and informed journalists that reaching out to players directly rather than going through the athletic department would result in retribution in the form of restricted access to athletes and coaches if violated. This put the athletic department up as a wall between athletes and journalists. The inevitable result of which was the NLRB filing a complaint that USC was setting employee conditions for their athletes, as these sorts of free speech restrictions are not allowed for a typical scholarship student at a university, but are allowed for only for those under an employment agreement with the university. (ex. a journalist can reach out to a student on academic scholarship and the student can reach out to the journalist with no retribution, but an employee may not enjoy such freedom as part of their employment contract).

The National College Players Association complained to the NLRB that the free speech rights of athletes and journalists were being infringed unfairly as athletes were being treated by the university as employees, not as scholarship students. The NLRB reviewed the complained and the conditions of student athletes and filed a case against USC as a result.

The Case

On May 18th the US Government filed a complaint against USC. This complaint alleges that certain USC Athletes (Football and Basketball Players) are employees that should be protect under the National Labor Relations Act.

The NLRB’s Argument

The following creates a labor condition for the student athlete that is defined as employment under federal law:

  1. Athletes perform a service for the university that generates significant income.
  2. Athletes are compensated with $76,000 worth of benefits for this service in tuition, fees, travel expenses, etc.
  3. Athletes have a set schedule including restrictions and conditions of participation.
  4. Athlete compensation is contingent on ongoing participation, rule compliance, and so on within the bounds of the NCAA and University.
  5. Athlete limitations on interaction with the media meets the standard of an employment contract, rather than one in which a typical student at a university would undergo.

USC’s Argument

USC’s primary argument is that the NLRB is selectively and inappropriately cherry-picking various policies and conditions in order to engineer a fallacious argument of the conditions of a student-athlete as that of an employee. That they are not telling the whole story in order to paint a picture for the court.

They also argue that they do not restrict the free speech of their athletes, nor restrict journalist access, by using the athletic department as a pass-through and simply not doing so for other scholarship types does not necessarily mean that they could not, if they so chose, do so. Ex. if they declared a student on a math scholarship could only do media interviews if first cleared by the math department that it would not make that student an employee nor infringe on the student’s free speech rights. As such the initial argument and complaint is invalid.

What’s at Stake:

If court rules in the NLRB’s favor Athletes who play Football and Basketball will be granted full rights as employees under the NLRA, including:

  • Right to Unionize or Join an Existing Union
  • Participate in “Protected Activities” without fear of retribution or punishment by USC, the Pac-12 (or Big Ten) Conference, or NCAA such as:
    • Political Speech outside of work
    • Discussing the quality of workplace conditions
    • Discussing pay or lack thereof with fellow athletes
  • No penalties for taking medical leave from employer to participate in medical procedures, vaccination appointments, or pregnancy-related care at the scheduling discretion of the Athlete.

Bottom Line:

If the NLRB eventually wins their claim, the immediate effect is not very profound. Athletes can be contacted directly by the media and gain some rights as mentioned above.

However, USC Athletes will be considered employees protected by the NLRA. Should this occur, there are expected ripple effects:

  • USC, the Conference in which they play, and the NCAA would immediately be considered joint-employers of USC Athletes under the NLRA.

    • Any student-athletes at any university could then file a petition with the NLRB to have the student-athletes at their university also considered employees.
    • These petitions would be expedited and approved quickly based on the USC ruling, and very rapidly 1-by-1 Universities and Conferences would be considered Employers as they did.

  • Athletes being defined as “Employees” by a federal agency will be used as precedent and referenced in hundreds of cases across the country. It would likely set off a chain reaction of compensation agreements for student-athletes.

    • The NCAA could not block universities from paying athletes defined as employees with any rules or penalties. Football and Basketball players would legally be employees and if a university were to pay them a paycheck the NCAA could not overrule federal law by restricting compensation.

  • Athletes will be allowed to unionize and demand compensation, with millions of dollars of fines for any university that attempts to stop them from doing so.

  • Tuition, etc, being considered “employment compensation” for student athletes puts them in a murky area for tax law, and the IRS would be likely to weigh in on whether or not student athletes would owe taxes for their compensation. Should the IRS make such a claim Athletes would certainly be expected to demand cash-payment to (at minimum) cover the tax liability they would owe to the state and local government.

Is this the Final Word?

No.

Regardless of who wins, the case will be subject to appeal to the NLRB in Washington D.C. in December. The NLRB is almost certainly going to back the California branch of the NLRB bringing the case.

  • Assuming that happens, it will be appealed in Federal Appellate Court in Washington D.C. in the Spring of 2024.

    • That ruling could then be appealed to the Supreme Court of the United States, who would have up to a year to decide whether or not to take the case.

All told, this case could go on until the Summer of 2025 when SCOTUS eventually hears the case, or it could end earlier if they decline to hear the case. It could also end earlier if USC or the NLRB decide to not appeal a ruling for whatever reason and accept the result.