Employee or Not Employee? That is the Question. The Test for Employee Classification and its Impact on the USC Case Before the NLRB.

In the ever-changing landscape of college athletics, one of the biggest issues on the table is whether student athletes should be reclassified as employees. Like most questions in the legal field, the answer to this question is “it depends.” Accordingly, the test to determine if one is considered an employee under the National Labor Relations Act (NLRA) is called the “Right to Control Test.” Under this test, the NLRA applies a “totality of the circumstances” to determine if one is considered an employee. Thus, the following ten factors are considered but not dispositive[1]:

1. Does the principal have the right to control the manner and details of the work, including the right to terminate “at-will?”
2. Is the one performing services engaged in a distinct occupation or business?
3. Where is the work done? Is it done with or without supervision?
4. What level of skill is required by the occupation?
5. Does the principal supply the instrumentalities/tools, and place of work for the person doing the work?
6. What is the method of payment?
7. Is the work part of the regular business of the principal?
8. Do the parties believe that they are creating the relationship of employer-employee?
9. Is there an opportunity for profit or loss?
10. Is there an alleged employee’s investment or employment of others?

Moreover, courts have also stressed that the label that parties give to their relationship is not controlling (i.e., just because one is referred to as a “student athlete” does not mean that they are not also considered an “employee”). Hence, Jennifer Abruzzo – General Counsel at the National Labor Relations Board (NLRB) – has taken this idea one step further by stating that the term/label “student athlete” should not be used. Rather, Abruzzo believes that such individuals are in fact employees.[2]

Most recently, the idea of whether a student athlete can or should be classified as an employee, was brought before the NLRB in February of 2022.[3] Specifically, “longtime college athlete advocate Ramogi Huma and his National College Players Association [NCPA], [has] allege[d] that USC, the Pac-12, and the NCAA are all joint employers of football and basketball players—and that they have been misclassifying these athletes as ‘amateurs.’”[4] Accordingly, Huma and the NCPA have filed an “unfair labor practice” charge against USC, the Pac-12, and the NCAA, for violating NLRA Sections 7 and 8(a)(1).

Huma, a former UCLA football player who was part of the push for Name, Image, and Likeness (NIL )and multiple federal antitrust cases against the NCAA, stated: “Coaches, athletic directors, and conference commissioners are making millions of dollars while NCAA sports denies athletes fair compensation, breaks minimum wage and overtime laws, and avoids workers compensation while hazardous workplace conditions remain unchecked[.] [W]e are working to make sure college athletes are treated fairly in both the education and business aspects of college sports.”[5]

Huma and USC may be onto something, because on March 5, 2024, by a vote of 13-2, the players of Dartmouth University’s men’s basketball team voted to unionize and join the Service Employees International Union, Local 560.[6] In ruling that the Dartmouth basketball players are employees, NLRB Regional Director Laura Sacks “posited that under the National Labor Relations Act [NLRA] that ‘employment’ requires that an employer have the right to control an employee’s work, and that such work is ‘performed in exchange for compensation.’ Regional Director Sacks [went on to state that] . . . because Dartmouth has the ‘right to control the work performed’ by the men’s basketball team and ‘the players perform that work in exchange for compensation’ and for the benefit of the school, the members of the team are employees under the Act.”[7]

Nevertheless, it should be noted that despite Dartmouth men’s basketball’s successful unionization efforts, they are already facing issues and have filed an unfair labor practice charge. Specifically, “Dartmouth [has] . . . announc[ed] that it would not bargain with the [basketball] players – a tactic designed to force the case into court in the hopes that a federal judge would overturn the NLRB decision.”[8] So, despite achieving its goal of joining a union with the hopes of receiving payment, Dartmouth men’s basketball is currently facing an early roadblock in paving the way for a new NCAA amateurism model. Therefore, this begs the question of what will happen in the USC case? The answer is that only time will tell because “it depends.”

---

[1] Cotter v. Lyft (Northern District of California, 2015).

[2] Drew, Nellie, Say goodbye to the “student athlete,” UB Law Sports & Entertainment Forum (September 29, 2021) https://ublawsportsforum.com/2021/09/29/say-goodbye-to-the-student-athlete/

[3] Case Number: 31-CA-290326; https://www.nlrb.gov/case/31-CA-290326

[4] Christovich, Amanda, Hearings Have Concluded in the Pivotal USC Athlete Employment Case. What’s Next?, Front Office Sports (April 22, 2024) https://frontofficesports.com/hearings-have-concluded-in-the-pivotal-usc-athlete-employment-case-whats-next/

[5] Christovich, Amanda, The NCAA’s Amateurism Model Is on Trial: Everything You Need To Know, Front Office Sports (December 18, 2023) https://frontofficesports.com/the-ncaas-amateurism-model-is-on-trial-this-week/

[6] Fasoro, Priscilla et al., Men’s Basketball Team Scores With NLRB Ruling, Covington (April 1, 2024) https://www.insideglobaltech.com/2024/04/01/mens-basketball-team-scores-with-nlrb-ruling/

[7] Id.

[8] Associated Press, Dartmouth basketball players union accuses school of unfair labor practices, ESPN (August 21, 2024) https://www.espn.com/mens-college-basketball/story/_/id/40941682/dartmouth-basketball-players-union-accuses-school-unfair-labor-practices