The NCAA Division I Board of Directors has approved new guidance clarifying how schools can engage with student-athletes in the constantly evolving name, image, and likeness (NIL) arena on their campuses.

The NCAA first implemented the Interim NIL Policy on July 1, 2021. In November 2021, the NCAA released a Q&A document, which declared that schools could not use NIL transactions to compensate student-athletes nor dictate how students use their compensation. In May 2022, the Board released additional guidance specifying that institutional coaches and staff may not arrange a meeting between an NIL entity and a prospective student-athlete nor communicate with a prospective student-athlete on behalf of the NIL entity. The May 2022 guidance did not specifically extend this prohibition to involvement with NIL activities for currently enrolled student-athletes.

The latest guidance, approved on October 26, 2022, clarifies how schools can interact and support enrolled student-athletes’ NIL activities. Schools are encouraged to provide educational training to current student-athletes on such topics as financial literacy, taxes, entrepreneurship, and social media practices. According to the guidance, these educational programs also can be provided to collectives, boosters, and prospective student-athletes.

With respect to supporting student-athlete activities:

  • Schools are allowed to: administer a marketplace that matches student-athletes with NIL opportunities; arrange space for NIL entities and student-athletes to meet on campus or in school facilities; and promote student-athlete NIL activity on paid platforms, provided that the student-athlete or NIL entity is paying the going rate for the advertisement.
  • Schools are not allowed to: communicate with NIL entities regarding specific student-athlete requests or demands for compensation; assist proactively in the implementation of a specific student-athlete’s NIL activity; and provide a student-athlete access to equipment, unless the same benefit is generally available to the institution’s students.

With respect to supporting NIL entities and collectives:

  • Schools are allowed to: assist NIL entities in raising money for those entities; provide assets (e.g., tickets) to NIL entities under sponsorship agreements if those assets are available to other sponsors; encourage donors to provide funding to NIL entities if they are not directed to a specific sport or student-athlete; and facilitate meetings between donors and NIL entities.
  • Schools are not allowed to: subscribe to nor donate cash to the NIL entity; provide assets to a donor as an incentive for providing funds to the NIL entity; and allow athletics department staff members to be employed by an NIL entity.

Further, schools are not allowed to engage in certain negotiating, revenue sharing, and compensating activities, including:

  • Allow staff members to represent enrolled student-athletes for NIL deals; enter into contracts with the student-athletes for the sale of products related to NIL deals; engage in student-athlete revenue sharing; and allow coaches to compensate student-athletes to promote the coach’s camp.

Any violations that occurred prior to this guidance will be reviewed by the Board and be pursued only if the infractions are clearly contrary to the Interim Policy.

The Jackson Lewis Collegiate and Professional Sports practice group is well-versed in NCAA issues and continues to analyze ongoing developments in the area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.

The National Labor Relations Board (NLRB) has released a Notice of Proposed Rulemaking to change the standard for determining if two employers may be joint employers under the National Labor Relations Act (NLRA). The proposed rule, expected to become effective sometime in 2023, could make it more likely that professional and collegiate leagues would be found to be joint employers of any unionized professional players or collegiate student-athletes who play for teams that are members of those leagues.

As a joint employer of unionized players of member teams, a league could be jointly responsible for unfair labor practices committed by the teams or the team’s supervisors or managers (i.e., coaches and administrators), be required to participate in collective bargaining negotiations with the teams concerning the wages and other terms and conditions of employment of the players, and picketing directed at the league would be considered primary and therefore permissible (rather than secondary and subject to injunction).

Currently, the NLRB will find two or more employers to be joint employers if there is evidence that one employer has actually exercised direct and regular control over essential employment terms of another employer’s employees. An employer that merely reserves the right to exercise control or that has exercised control only indirectly will not be found to be a joint employer. The NLRB has proposed that the Browning Ferris standard be restored. Under the proposed rule, two or more employers will be found to be joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” Importantly – and the critical import of the proposed rule – the NLRB will consider both evidence that direct control has been exercised and that the right to control has been reserved (or exercised indirectly) over these essential terms and conditions of employment when reviewing two or more employers for status as joint employers.

Professional athletes are employees under Sec. 2(3) of the NLRA, of course. As for collegiate student-athletes, NLRB General Counsel Jennifer Abruzzo issued a memorandum, GC 21-08, announcing the intention to consider scholarship athletes at private colleges and universities to be employees because, as she wrote, they “perform services for their colleges and the NCAA, in return for compensation, and subject to their control.” Stating in summation “that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, that [she] will be taking that legal position in future investigations and litigation” under the NLRA, Abruzzo signaled that conferences, leagues, and the NCAA will face joint-employer analysis in an appropriate case.

The “essential terms and conditions of employment” will translate to the sports workplace in the nature of game, practice and meeting times, travel and accommodation standards, equipment and safety standards, conduct rules and disciplinary proceedings, the length of a season, the number of games and playoff terms, and numerous other areas. Professional leagues may already coordinate with their member teams on a number of employment terms for players. For collegiate conferences and leagues, this may be new. Under the current standard, a league could better insulate itself from the decisions made by its members’ coaches and administrators by not exercising direct involvement in those matters. Under the proposed rule, a league or conference that merely has the power (even if reserved and unexercised) to make decisions affecting the “work” conditions for student-athletes could be jointly liable along with the institution for decisions made solely by the institution’s agents.

Consequently, conferences and leagues should consider training managers on their responsibility under the NLRA to private sector employees. They should also consider the role they want to play in collective bargaining should any of the student-athletes at their member institutions unionize.

The U.S. Supreme Court has held in favor of a former high school football coach in western Washington who lost his job after kneeling to pray on the 50-yard line after games. Kennedy v. Bremerton School Dist., No. 21–418 (June 27, 2022).

In reversing the Ninth Circuit, the Court held the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in personal religious observance from government reprisal. It held that the Constitution neither mandates nor permits the government to suppress such religious expression.
The matter involved Joseph Kennedy, a former Bremerton High School assistant football coach, who would kneel to pray, by himself, at the 50-yard line at the completion of football games.

The Court leaned on its holding in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), that the First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But, as the Court held, teachers and coaches are also government employees paid, in part, to speak on the government’s behalf and to convey its intended messages. Accordingly, the Court held that, to account for the complexity associated with the interplay between free speech rights and government employment, a two-step inquiry must occur.

The first step, the Court explained, involves an inquiry into the nature of the speech at issue. Here, did Kennedy offer his prayers in his capacity as a private citizen, or did his prayers amount to government speech attributable to the District? Kennedy was not instructing players, discussing strategy, or any other actual work that the District paid him to produce as a coach, the Court noted. The Court held that the timing and circumstances of his prayers, during the postgame period when coaches were free to attend brief personal matters and students were engaged in other activities, confirms that Kennedy did not offer his prayers while acting within the scope of his duties as a coach.

The Court said the second step requires that the government must prove its interests as an employer outweigh an employee’s private speech on a matter of public concern. The District, like the Ninth Circuit below, insisted that Kennedy’s right to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation. The District admitted that it sought to restrict Kennedy’s actions, at least in part, because of their religious character. The District explained that it could not allow an on-duty employee to engage in religious conduct, even though it allowed other on-duty employees to engage in personal, secular conduct. The District’s performance evaluation after the 2015 football season advised against hiring Kennedy on the ground that he failed to supervise student-athletes after games, but any sort of postgame supervisory requirement from the District was not applied in an evenhanded way. The Court held that the District thus conceded its policies were neither neutral nor generally applicable.

Thus, the Court held, “Respect for religious expressions is indispensable to life in a free and diverse Republic.” Here, the Court noted, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances, even as it allows comparable secular speech. The Court held, “The Constitution neither mandates nor tolerates that kind of discrimination.”

If you have any questions or need assistance, please reach out to a member of our Sports group the Jackson Lewis attorney with whom you regularly work.

Joining a host of states implementing laws prohibiting transgender athletes from competing in sports of their gender identity, Indiana has enacted legislation, over the governor’s veto, banning transgender girls from competing on their schools’ girls’ sports teams.

The issue of whether transgender athletes should be allowed to compete in the sport of their gender identity has been labeled as one of competitive fairness and science. This year, a transgender woman won the NCAA swimming title, becoming the first openly transgender woman to win a championship. Politicians and sports sanctioning groups have failed to address how to respectfully allow transgender athletes to compete. This issue has spilled over into the courts.

In addition to Indiana, states that have laws banning transgender students from participating in sports of their gender identity include:

  • Alabama
  • Arkansas
  • Florida
  • Georgia
  • Idaho
  • Iowa
  • Mississippi
  • Montana
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • West Virginia
  • Utah

Other states have passed similar legislation, but they have not yet become law or have been vetoed by the state’s governor. These states include:

  • Arizona
  • Kansas
  • Louisiana
  • Missouri
  • North Dakota
  • Oklahoma

As states continue to push this type of legislation, humans’ rights groups, such as the American Civil Liberties Union (ACLU), have initiated lawsuits to test the constitutionality of such laws. For example, since Indiana legislation passed, the Indiana ACLU has brought a federal lawsuit advocating that a 10-year-old transgender girl be allowed to compete on her school’s girls’ softball team. In West Virginia, a federal court blocked the state from enforcing a law banning transgender girls and women from participating in school sports, ruling in favor of a 11-year-old transgender girl wanting to compete for her school’s girls’ cross-country and track teams.

The U.S. Supreme Court has yet to hear a case specifically regarding transgender student athletes. However, the Court ruled, in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the term “sex” includes a person’s “gender identity” in discrimination cases covered by Title VII of the Civil Rights Act. The Court went on to hold “Title VII’s prohibition against sex discrimination includes a prohibition against discrimination based on sexual orientation and gender identity.” The Supreme Court made it clear this language applied only to Title VII and not to Title IX of the Education Amendments and school sports.

K-12 institutions and universities will need to monitor this litigation as it continues to unfold. As courts across the United States rule either for or against the student-athletes, it is important for schools to update their policies regarding transgender athletes. Jackson Lewis attorneys are available to assist with monitoring and updating student athlete policies.

If you have any questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work.

The U.S. Soccer Federation (USSF), the governing body for international soccer in the United States, and the unions representing the women’s and men’s national soccer teams, U.S. Women’s National Team Players Association, and the U.S. National Soccer Team Players Association have reached a pair of collective bargaining agreements (CBAs) with identical economic terms. For the first time, equal pay to the players of each team will be provided.

The historic agreements also resolve the long-running equal pay lawsuit women players had brought against USSF. The labor contracts run through 2028.

The key driver in pay disparity between the compensation for the Men’s and Women’s National Teams (USMNT and USWNT, respectively) had been the World Cup prize money received by them from FIFA, the international soccer governing body. The prize money for the men’s World Cup has been about 10 times as large as that of the women’s World Cup. While that disparity, though smaller, will continue, the Men’s and Women’s National Teams and USSF have agreed to pool the prize money received from FIFA for the next two pairs of men’s and women’s World Cup tournaments and divide the players’ share of the pool equally between the players on the two teams. No other country’s soccer federation pools prize money and divides it equally to its men’s and women’s national teams.

USSF will sign separate labor contracts with each union, but the economic terms of each will be the same. These include appearance fees (for participating in a training camp) and game bonuses (for being named to a gameday roster), other prize money, and commercial revenue share. Single game payments can amount to $18,000 for matches, while tournament prize money can reach as much as $24,000 per game. This will ensure that the USMNT and USWNT will both be among the highest paid national teams throughout the world.

USSF has issued a fact sheet providing an overview of the terms reached in both CBAs. Generally, prize money from non-World Cup FIFA tournaments, regional tournaments, and other official tournaments in which both the USWNT and USMNT participate also will be pooled. For the first time, the contracts provide that USSF will share a portion of broadcast, apparel, and sponsorship revenue with the players’ share divided equally between USWNT and USMNT. Ticket revenue and game sellout bonuses also will be equal for the USWNT and USMNT. Further, non-economic conditions are being equalized. Playing surfaces, travel, accommodations, and national team training staffs (allowing for the unique needs of each team) will be the same. Guaranteed salaries and other benefits enjoyed by the USWNT are no longer needed as the various domestic women’s league continue to prosper.

While certain claims from the USWNT lawsuit settled in 2020, these labor negotiations will end litigation that commenced six years ago, which had an impact on sponsorship along with ongoing amassing legal fees. Part of the settlement included a $24 million pool of money that would be paid out upon reaching an agreement on these CBAs that provided the formal terms for equal pay between both teams. Now, the class members can seek a court order to certify the settlement so the payments can be issued to players.

For the first time since the NCAA issued its Interim Name, Image and Likeness (NIL) Policy on July 1, 2021, the NCAA Board of Directors issued new guidance in an attempt to place some limits on the involvement of boosters in the rapidly growing NIL landscape.

The new guidance, issued on May 9, 2022, provides clarity on the limited role of boosters in the recruitment process of a prospective or enrolled student-athlete. The guidance defines a “booster” as an individual, independent agency, corporate entity, or other organization that promotes an institution’s intercollegiate athletics program, who assists with providing benefits to recruits, enrolled student-athletes, or their family members. The definition could also include “collectives,” which are set up to funnel NIL deals to prospective or enrolled student-athletes to encourage them to attend a certain university or leave their current university for another based upon an NIL deal.

Through this guidance, the NCAA is instructing universities that any entity or person who falls under the definition of a booster, including a collective, is not allowed to make NIL deals with prospective or enrolled student-athletes.

With the football and basketball off-season in full swing and the transfer portal rapidly growing, the NCAA believes this guidance helps to establish a common set of expectations for schools as they navigate the NIL world, while maintaining NCAA compliance.

In its directive, the NCAA also noted that the emphasis of the new guidance is on the boosters in the recruiting process and is not intended to question the eligibility of prospective and enrolled student-athletes involved in NIL deals. This seems to be the NCAA’s way of showing its continued support for student-athletes to be able to benefit from NIL deals, while limiting those who are involved in those deals.

Notably, the NCAA stated that while the guidance is effective immediately, the enforcement staff may review potential violations that occurred prior to May 9, 2022. The NCAA added, however, that it will only pursue those actions that are clearly contrary to the interim policy, including the most severe violations of recruiting rules or payment for athletics performance.

The Jackson Lewis Collegiate and Professional Sports practice group is well-versed in NCAA issues and continues to analyze ongoing developments in this area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.

In the wake of a recent trial court decision finding that minor league baseball players are year-round employees, California State Senator Josh Becker has introduced legislation proposing that California enact the Minor League Baseball Players’ Bill of Rights.

Click here to read more on the California Workplace Law Blog.

Maryland State Delegate Jay Walker has introduced Maryland House Bill 1431, entitled Public High Schools-Student Athletes-Compensation for Name, Image and Likeness, which would authorize public high school athletes in the state to enter into name, image and likeness contracts (NIL), provided certain conditions are met, including the co-signing of any agreement by a parent or guardian. The proposed legislation, which would not take effect until July 1, 2023, would amend existing Maryland Education legislation and add to Section 7-129 and provide these specific rights to any public high school athlete who participates in an interscholastic athletic program at any public high school in the state.

The bill would prevent the State Superintendent, any County Board, or any individual public schools from establishing any rule, requirement, standard or other limitation preventing student-athletes from earning compensation for their name, image or likeness. The same limitation preventing limitations on NIL rights would also apply to any athletic association within the state, including the Maryland Public Secondary Schools Athletic Association. It would also prevent any rule that would restrict a school from participating in high school athletics if a student-athlete from that school has received compensation for name, image and likeness rights.

The proposed legislation also restricts any public school or any groups affiliated with the school from providing compensation to the student-athlete for their NIL rights or from limiting the student-athlete from using their NIL for a commercial purpose when the student-athlete is not involved in official team activities.

As with most state NIL laws legislating college athletes, the bill provides student-athletes with the right to secure representation for contracts or legal matters.

In addition, the legislation does provide a few limitations to the student-athlete. Specifically,

the bill provides that the terms of the contract cannot be in conflict with any high school athletic program contract and that the student-athlete does not have the legal right to utilize the school’s name, trademarks, logos or other intellectual property owned by the school in any NIL agreement.

If passed by Maryland state legislators and signed into law, Maryland would join other states including California, New York and New Jersey, which have already authorized NIL rights to the high school athletes in their states.

Unlike Maryland which would protect NIL rights pursuant to state law, the California Interscholastic Federation (CIF) has taken the position that their rules never prohibited athletes from profiting from their NIL rights, as the CIF is unwilling to declare an athlete ineligible for also participating in the state’s film and television economy. However, the CIF prohibits athletes from using their school’s name, logos, uniforms, or marks in endorsements.

New York and New Jersey have also joined California in granting high school athletes NIL rights. While the New York legislature has yet to pass a state law granting NIL rights to college athletes in the state, the New York State Public High School Athletic Association (NYSPHSAA) executive committee has revised the state’s amateur rule to allow high school athletes to benefit from their NIL rights without jeopardizing their amateur status.

New Jersey has also empowered high school athletes with specific NIL  endorsement rights. The New Jersey State Interscholastic Athletic Association’s executive committee (NJSIAA) approved an NIL proposal to permit athletes to benefit from their NIL rights. The New Jersey Association has adopted the California model by prohibiting athletes from using their school logos and marks. New Jersey athletes also are prohibited from endorsing certain categories of products and services, including adult entertainment, alcohol, cannabis, gambling, and firearms.

Jackson Lewis’ Sports Industry Group will continue to monitor the ongoing NIL issues on the federal and state level and the impact on the sports legal landscape. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

Ongoing efforts to urge the National Labor Relations Board (NLRB) to classify student-athletes as employees continue with the latest unfair labor charge filed by the National College Players Association (NCPA) and their Executive Director Ramogi Huma. The unfair labor practice charge alleges that the NCAA, the Pac-12 Conference, and University of Southern California (USC) and the University of California, Los Angeles (UCLA) have violated the National Labor Relations Act (NLRA) and that NCAA Division-I men’s and women’s basketball and FBS football players should be recognized as university employees.

Huma is no stranger to this ongoing, off-the-field battle over the status of student-athletes in college athletics.

Seven years ago, Huma supported a group of Northwestern University football players petitioning the NLRB to unionize as employees of the University. Despite regional support for their petition, the NLRB ultimately dismissed the petition and essentially denied the claim that these individuals were university employees and should be allowed to collectively bargain.

Huma’s current charge follows an initial, similar charge filed by Michael Hsu, co-founder of the College Basketball Players Association (CBPA), with Region 25 of the NLRB in Indianapolis,

which accused the National Collegiate Athletic Association (NCAA) of violating Sec. 8(a)(1) of the NLRA “by classifying college athletes as student-athletes” (Case No. 25-CA-286101). That charge is still be investigated by the NLRB and is currently pending.

Huma likely will attempt to transition his current charge into a complaint requiring a judicial determination by an administrative law judge by asserting many of the same arguments made in 2015 when the Northwestern University scholarship football players attempted to unionize. These same arguments were later expressed by former NLRB General Counsel Richard Griffin in his 2017 memorandum (GC 17-01), which has formed the basis for General Counsel Jennifer Abruzzo’s recent memorandum.

Although nearly two years after the failed organizing attempt by the Northwestern players, Griffin’s memorandum asserted that scholarship football players met the broad interpretation of the NLRA’s definition of “employee” and the common-law employee test, because they: (1) perform services for their institutions and the NCAA in playing football and generating millions of dollars in net profits and fostering an immeasurably positive reputational image which boosts admission applications and alumni donations; (2) are subject to the control of their institution and the NCAA based on the NCAA’s strict rules and compliance requirements and additional controls imposed by the individual institutions; and (3) receive compensation in the form of valuable scholarships covering tuition, fees, rooms, board, books and additional stipends directly tied to a player’s status and performance on the football field.

Both current charges support the conclusions announced by Griffin in his 2017 memorandum and the goals asserted by current Abruzzo in her memorandum issued on September 28, 2021 (GC 21-08)

and her plan to use the General Counsel’s “prosecutorial authority” to pursue an administrative law judge determination that certain student-athletes must be reclassified as  university employees pursuant to the NLRA. In her memorandum, Abruzzo asserted that the mere reference by schools to student-athletes as anything but employees is a misclassification of their status and a violation of the Sec. 8(a)(1) of the NLRA.

However, the charge filed by Huma has one important distinction from Hsu’s charge. It has named UCLA, a public entity, as a respondent in the charge.

Section 2(2) of the NLRA excludes from the definition of an “employer,” over whom the NLRB may assert jurisdiction, “any State or political subdivision thereof….”

Thus, any clearly public institution, created by the state or administered by individuals responsible to public officials or to the general public, should be exempt from NLRB jurisdiction under section 2(2) of the NLRA. This longstanding restriction on state institutions being excluded from the jurisdiction of the NLRA has been confirmed. NLRB v. Natural Gas Utilities District of Hawkins County (402 U.S. 600 (1971)); and Children’s Village, Inc. 197 N.L.R.B. 1218, 80 L.R.R.M. 1747 (1972).

The efforts to overcome this potential jurisdictional block with regard to public institutions may be aided by Senator Chris Murphy (D-Conn.) and Senator Bernie Sanders (D-Vt.). They have proposed the College Athlete Right to Organize Act. Their proposed legislation would amend the NLRA and provide student-athletes collective bargaining rights, regardless of any existing state law restrictions.

The legislation proposes that the definitions of “employee” and “employer” under Section 2 of the NLRA be rewritten and amended to consider any college-athlete that receives a grant-in-aid or other compensation from their college for their participation in intercollegiate athletics to be an “employee” of their respective college, whether a public or private institution.

As a result, student-athletes would be recognized as university “employees” and able to seek redress for all labor issues arising with their “employers” through the NLRB, including representation issues, recognizing a bargaining unit or resolving other labor disputes.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing issues on the federal and state level and the impact on the sports legal landscape. Please feel free to reach out to any member of the Group with questions.

Iowa lawmakers have expanded on federal efforts to make student-athletes employees. They have introduced legislation (H.F. 2055) to classify intercollegiate athletes at Iowa’s state universities as state employees. This follows a year in which numerous state legislative efforts established name, image, and likeness rights for student-athletes and federal court decisions further impacted student-athletes’ rights.

The bill also would allow the Iowa state board of regents to fix athlete compensation in the same way it sets compensation for school presidents and other state employees.

The bill was introduced by Representative Bruce Hunter (D-Des Moines), the ranking member of the Iowa House Labor Committee.

If approved, the bill would apply to athletes at Iowa’s three public universities (University of Iowa, University of Northern Iowa, and Iowa State University), which all compete at the NCAA Division I level. None of the athletes at Iowa’s private institutions (12 of which compete across the NCAA’s three divisions) would be impacted and these student-athletes would not be considered employees of their schools under the terms of the bill.

The proposed Iowa legislation is consistent with the goals announced at the federal level by National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo in her September 28, 2021, memorandum.

She stated that, based on her interpretation of the National Labor Relations Act (NLRA), certain student-athletes are employees of their academic institutions.

She asserted that these student-athletes have been misclassified and that they should receive all the benefits and protections of employee status pursuant to the terms of the NLRA.

Although no student-athlete has been willing to initiate the process of asserting a violation of the NLRA that Abruzzo outlined in her memorandum, an unfair labor practice charge was filed against the NCAA by Michael Hsu, co-founder of the college basketball player advocacy group, the College Basketball Players Association. Hsu filed the unfair labor practice charge (Case No. 25-CA-286101) with Region 25 of the NLRB, in Indianapolis, accusing the NCAA of violating Sec. 8(a)(1) of the NLRA “by classifying college athletes as student-athletes.”

Hsu could file a charge even though he is neither a student-athlete nor the recognized representative of any student-athlete because the NLRA does not require standing to file a charge and the NLRB’s regulations provide that “any person may file a charge alleging that someone has engaged in . . . an unfair labor practice” (emphasis added). Hsu’s charge is being investigated and, if the charge is transitioned into a formal complaint, an administrative hearing will likely be held later this year.
In addition, Senator Chris Murphy (D-Conn.) and Senator Bernie Sanders (D-Vt.) have introduced the College Athlete Right to Organize Act to amend the NLRA. It would amend the definition of employee under Section 2 of the NLRA to include student-athletes and provide student-athletes collective bargaining rights, regardless of any existing state law restrictions. The legislation provides jurisdiction to the NLRB to exercise authority over all institutions of higher education within intercollegiate sports for collective bargaining and labor disputes.

Further, the Johnson v. NCAA litigation is pending in the Eastern District of Pennsylvania. In Johnson, collegiate athletes argue they were employees of their institutions and are entitled to proper wages under the Fair Labor Standards Act. The plaintiffs succeeded in overcoming their institution and NCAA’s attempts to dismiss their claims.

Finally, compensating college athletes has continued to gain momentum since the June 2021 U.S. Supreme Court decision in NCAA v. Alston and, in particular, Justice Brett Kavanaugh’s concurring opinion questioning the NCAA and member schools’ circular justification for not paying college athletes because colleges do not pay student-athletes. Shortly after Alston, the NCAA introduced a new policy allowing college athletes to be compensated for their name, image, and likeness.
Jackson Lewis’ Collegiate and Professional Sports Group will continue to monitor developments in the classification of college athletes as employees and the potential impact on college sports. Please feel free to reach out to any member of the Group with questions.