Conference realignment has far-reaching implications for the rights of college athletes, including those impacted by a May 18 unfair labor practice complaint filed by the National Labor Relation Board’s regional director Mori Rubin, which asserts that USC, the Pac-12 and the NCAA are joint employers of Trojans football and men’s and women’s basketball players. The Pac-12’s role in this controversy is due to change—and timing matters a great deal.
USC is currently a member of the Pac-12. Barring unforeseen circumstances, the university will remain a Pac-12 member through the 2023-24 athletic season, after which it is set to join the Big Ten.
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Last week saw two other Pac-12 stalwarts, Oregon and Washington, accepted the Big Ten’s invitation to join in 2024 and, by doing so, push the Pac-12—a league that dates back to 1915—to the brink of extinction. The schools’ moves were widely criticized by college sports fans and observers, at least those outside of Eugene and Seattle, for making a mockery of the notion that big-time college sports are primarily about education.
Ramogi Huma, executive director of the National College Players Association, says the latest temblors in college football have made the unfair labor practice (ULP) charge, which his group originally filed last year, all the more convincing.
“It is not something we are excited about—we think it is devastating for college athletics in many ways,” said Huma. “But their greed and crude business decisions highlight and underscore what we are talking about. College sports, when it comes to football and basketball, is like any other business—they have no moral high ground.”
On Nov. 7, an administrative law judge (ALJ) from the NLRB in Los Angeles will preside over a ULP hearing, in which USC, the Pac-12 and the NCAA will attempt to argue that Trojans athletes are not employees. The hearing could last anywhere from a day to a week, after which the parties will be allowed to submit post-hearing briefs before the ALJ will rule, which could take several months.
That decision can be appealed to the NLRB in Washington D.C. The board’s decision, in turn, would be subject to challenge at a federal appellate court and potentially the U.S. Supreme Court. To be clear, this controversy could last several years.
While there’s a lot up in the air, this much seems for certain: the dispute will not be resolved by the time USC has joined the Big Ten and perhaps, given recent developments, not while the Pac-12 is a functioning conference.
In adding USC, its second private-school member along with Northwestern, the Big Ten could also be assuming new liability.
Customarily, if the NLRB has good reason to think a third party may be involved in an ongoing ULP charge, it will serve them with what is known as a Golden State successor letter, which lays out “a short statement of the third party’s potential exposure.”
The type of letter refers to the 1973 Supreme Court decision in Golden State Bottling Co. Inc. v. NLRB, which addressed whether an acquiring entity is responsible for a ULP charge filed against its predecessor.
So far, the public docket does not show the Big Ten having been sent any such notice, but that, too, could only be a matter of time. (A league spokesperson declined to comment.)
Whether an athletic conference is a joint employer depends on the relationship between the conference, USC and the athletes.
The more control the Pac-12 (or, eventually, the Big Ten) has over USC athletes (either directly or through requiring USC to enforce conference rules) and the more that control compels athletes into “working” akin to employees who ought to be paid for their labor, the stronger the argument that the conference is a joint employer.
NLRB General Counsel Jennifer Abruzzo, who last December found merit in the NCPA’s charge, contends that USC, the Pac-12 and NCAA have collectively and individually deprived USC athletes of their rights, under the National Labor Relations Act, to gain recognition as employees and join together to improve their conditions.
The three respondents have dismissed these assertions as “frivolous and without foundation in law or fact.” They have advanced several legal defenses, including that employment recognition would beget conflicts for schools—and, to some degree, athletes—in complying with the NLRA, Title IX, federal immigration laws, the Internal Revenue Code, state workers compensation laws and the Fair Labor Standards Act. They also contend the NLRB would violate the First Amendment if it forces colleges to articulate policies it does not wish to express.
If the ALJ, NLRB or federal court ultimately determines that USC, the Pac-12 and NCAA are joint employers of USC football and basketball players, other Trojan athletes, as well as those at different private colleges, could rely on the ruling to establish their recognition as employees. Whether that argument succeeds would depend on several factors; most important, whether there is a similarity in experiences between themselves and those of USC football and basketball players.
Also, whether athletes at public universities merit the same categorization is a question of individual state labor law, not the NLRA. If their university is a member of a conference akin to the Pac-12, and if the Pac-12 and NCAA are deemed joint employers, those athletes could argue the conference and NCAA are their joint employers, too.
That leads back to the Pac-12 and timing. Barring a settlement, this legal controversy will last much longer than USC is a member of the Pac-12. It might last longer than the Pac-12’s existence.
When USC joins the Big Ten, the petition at issue in the NLRB matter will be amended to name the Big Ten as the alleged joint employer conference; the Pac-12 can’t be a joint employer of a school that is no longer a conference member.
The relevant legal question will remain the same: Whether the conference (Pac-12 or Big Ten) is, allegedly like the NCAA, a joint employer.
But the swap in conference might be impactful if the Big Ten operates differently than the Pac-12 in ways that have bearing on the employment question. Given that the Power Five conferences are arguably morphing into leagues that resemble the pros, there is, as Sportico recently explained, a more compelling legal argument that the players ought to be recognized as employees. Football and basketball players are the labor for enormous media and TV contracts, they travel to play games across the country as do pro athletes and their coaches are very well paid. It’s safe to say judges will take notice.
There are still other variables. If the Pac-12 collapses in the coming days or weeks, and its current member schools need to swiftly find another conference, whatever conference USC joins would inherit the NLRB matter until USC lands in the Big Ten. Alternatively, if the Pac-12 merges with the ACC or absorbs the Mountain West (or some variant), then that combined entity would inherit the NLRB matter as the alleged joint-employer conference.
No matter the arrangement, the relevant labor law question for joint employer analysis remains: What is the relationship between the conference (Pac-12, Big Ten, new combined entity, etc.) and the work of a USC athlete?
Given where college sports are heading, it’s becoming more difficult for a trier of fact to say that the relationship is anything but employment-like.
