Eroding Edifice

The unpaid student-athlete-amateur edifice is eroding. Over the years, we have noted attempts through litigation to acquire pay for athletes, at least in the sports that make money. The first big crack was the US Supreme Court's decision allowing payments for NIL (name-image-likeness). 

Now the NLRB may play a role, even for public universities that are part of athletic conferences (which are private). From USA-Today Sports/Front Office Sports:

Yet another complaint has been filed with the National Labor Relations Board aimed at ending the NCAA’s amateurism model. On Tuesday, a college athlete advocacy group called the College Basketball Players Association filed a charge with the NLRB against the Ivy League, Front Office Sports has learned.

The charge alleges the conference has misclassified athletes as amateurs, rather than professionals. While there are several other charges currently pending at the NLRB related to college athlete compensation rights, this is the first one filed solely against a conference.

Unlike the petition filed against Dartmouth in September, this case is not a unionization petition. But if advocates win, the case would have a similar outcome: granting athletes employment status under U.S. labor law.

“The Ivy League is a Division I conference of private schools that doesn’t allow athletic scholarships,” CBPA founder and former Minnesota regent Michael Hsu told FOS. “They have existed as long as the term ‘student-athlete’ has been around. This misclassification is 70 years old and needs to be looked at thoroughly.”

The Ivy League is the only D-I conference that prohibits athletic scholarships — a controversial policy that is currently the subject of an antitrust lawsuit.

Hsu filed similar charges against Dartmouth (inspired by the players’ petition to unionize) and Northwestern (inspired by the football mistreatment scandal), and the NCAA. Another group called the National College Players Association is a month away from a trial against USC, the Pac-12, and the NCAA on the same question for D-I football and basketball players.

In 2014, Northwestern football players attempted to unionize in the same way that Dartmouth basketball players are now. But their case was decided on a technicality: that the NLRB, which has jurisdiction over the private sector, couldn’t make a decision that would impact public schools. Therefore, the board decided not to rule in order to maintain a sense of parity across the higher education landscape.

By targeting conferences and the NCAA in addition to schools, advocates hope to invoke the “joint employer” doctrine. They’re inviting the NLRB rule that multiple entities employ college athletes — including private entities like conferences — which are under the NLRB’s purview.

These cases could take a year or more to reach an outcome. But they have a better chance of succeeding than others given the current political climate at the NLRB.

The flurry of cases aimed at attacking amateurism have come at the invitation of the NLRB’s General Counsel, Jennifer Abruzzo. In 2021, Abruzzo published a memo stating she believed many college athletes should be considered professionals under labor law.

The Ivy League declined to comment. 

Source: https://frontofficesports.com/advocacy-group-files-federal-labor-charge-against-ivy-league/.