The law applies to private entities and not to public institutions. So, at least in theory, GC 21-08 had no real impact on public colleges and universities. This theory has now been put to the test. The National College Players’ Association (“NCPA”) filed an unfair labor practice lawsuit on February 8, 2022 against UCLA, USC, PAC-12 and the NCAA. The NCPA alleges that all of these entities are joint employers of athletes. The NCPA further alleges that these joint employers interfered with the exercise of the athletes’ rights protected by law. (For example, the right to discuss pay and working conditions). Because the NCAA and PAC-12 are private entities, if the allegation of a joint employer relationship is found to be true, USC and UCLA may indeed be subject to the law even though they are public entities.
How serious is this development? In a word, “very”. Many in higher education were already concerned about the expanded view of the definition of “employee” reflected in GC 21-08. Now, this must be considered in conjunction with the Commission’s broader view of who a “joint employer” may be. The NCPA will argue that the NCAA and PAC-12 are joint employers with USC and UCLA because the NCAA and PAC-12 develop and enforce terms governing the “employment” of athletes (i.e. i.e. participation in sports). If the Board agrees, logically other similar public universities can expect to be treated as joint employers with the NCAA and their conferences. Also, to date the Council has focused on Division 1 athletes in revenue-generating sports, but there is no guarantee that this is where the Council’s attention will end.
For all of these reasons, the evolution of the NCPA’s unfair labor practice charge deserves special attention. We will keep readers informed. Beyond that, the new charges by the NPCA serve as another signal (in addition to GC 21-08) to colleges and universities that they should consider changes to their policies now in order to be better positioned to defend charges later.
