NLRB's case against USC, NCAA could fix recompense

It frankly couldn't have been a more boring testimony, the level of detail about USC football's practice schedules undercutting the fact that this convoluted record could completely change the future of collegiate athletics.

For hours Thursday, inside of a tiny hearing room in the National Labor Relations Board offices in Los Angeles, USC football assistant athletic director Joseph Wood laid out some of the program's most nitty and gritty elements on the stand. Monday film meetings. Tuesday and Wednesday practices. Friday walkthroughs. It seemed a strange detour on the slow and grueling procession toward the potential death of amateurism, this testimony over football players playing games of cards and Jenga on Friday night stays at the USC Hotel, Wood confirming that players weren't allowed to have guests in their rooms for — ahem — “distractions.”

Each piece of information on this record, though, serves as a tiny domino in the NLRB's fight to prove

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USC and the NCAA's level of control over USC football athletes — and reclassify student-athletes as employees. Those dominoes could ultimately fall toward systematic change in never-more-pressing issues of compensation for collegiate athletes.

“There's an air of inevitability,” said Jodi Balsam, a professor of clinical law at NYU's Brooklyn Law School and the NFL's former counsel for litigation.

Longstanding, foundational pillars of the NCAA's evolution are being riddled and pockmarked with a long line of antitrust suits being fired its way, most recently in a highly publicized pushback against an investigation into Tennessee. After Sports Illustrated broke news Tuesday that the NCAA was targeting Vols athletic programs over name, image and likeness infractions — most notably, a Tennessee NIL collective flying out freshman quarterback Nico Iamaleava for a visit — Tennessee Chancellor Donde Plowman penned a strongly worded letter to NCAA President Charlie Baker, followed shortly by a lawsuit from Tennessee Attorney General

Jonathan Skrmetti.

“The leaders of intercollegiate athletics owe it to student-athletes and their families to establish clear rules and to act in their best interest,” Plowman wrote to Baker, in a letter obtained by the Southern California News Group. “Instead, two and a half years of vague and contradictory NCAA memos, emails and `guidance' about name, image and likeness (NIL) has created extraordinary chaos that student-athletes and institutions are struggling to navigate.

“In short, the NCAA is failing.”

The Tennessee debacle, again, has ignited national conversation over murky guidelines around NIL, a concept around which everyone — from athletes to parents to USC football coach Lincoln Riley — are confused on the lack of clarity as to what can tangibly be discussed. Here's the thing: This NLRB case, which just concluded its third stage of hearings with witness testimony like Wood's, would lead directly to solutions and stability regarding payment for collegiate athletes.

In short, a judge's ruling in favor of the NLRB – deeming student-athletes are actually employees of both the USC and the NCAA (the Pac-12 is involved in this, too, but it's unlikely to be proven a joint-employer) — would give USC athletes the power to unionize. Thus, they could collectively bargain with the university for salary and other protections, similar to the National Basketball Players' Association or other players' unions in major sports leagues. Thus, it could set a precedent for a wide range of athletes at other schools to follow suit, leading to a complete restructuring of NCAA rules.

Such an outcome would actually be beneficial for the NCAA, as Balsam described. If athletes could collectively bargain with their member schools and the NCAA, discussing everything from salaries to transfer eligibility, it would protect the NCAA from any antitrust litigation around those concepts.

So why, then, are USC and the NCAA pushing back so hard on the NLRB's case?

“I still think there's a large segment of college athletics that does not want the athletes to be employees — it's sort of the last thing they're willing to fight on,” said Mit Winter, a nationally recognized NIL attorney.

Indeed, a letter penned by Baker to student-athletes in December — proposing a competitive subdivision that would completely destroy one of the NCAA's pillars of “competitive equity” — asserted that the NCAA “must continue to partner with Congress” to prevent student-athletes from being considered employees. The pushback, though, isn't just out of stubbornness; figuring out the logistics of widespread unionization would be a nightmare.

As Balsam described, USC is a private university. Employees at public universities are governed by state law, meaning if the USC decision set a precedent for athletes at public universities to assert employee status, there would have to be similar hearings held in all 49 other states.

Suffice it to say, change isn't coming at the drop of a hat. The NLRB-USC hearing will reconvene in late February; it'll take at least a few months for the judge to make a decision, and it's likely whichever party loses will put up a lengthy fight with a series of appeals. Balsam estimated, in the overall scope of complete change to college-athlete compensation, that society was “5-10 years away from the dust settling.”

“I am so glad,” Balsam joked, “I'm not Charlie Baker.”