The NCAA’s most crucial constitutional question, in my opinion, is whether all, some, or none of the school athletes work for their institutions, conferences, or NCAA.
A solution to that problem could result in the unionization of hundreds of thousands of innovative university employees, with conferences and the NCAA even liable as shared employers. Universities was owe back paid for past performer work and, going forth, be required to provide wages, health treatment and other forms of compensation.
The National Labor Relations Board, an independent body that upholds national labour laws and offers the rights of qualified workers, will determine the eligibility of school sports as people.

Earlier this year, Board local producer Laura Sacks recognized Dartmouth College men’s baseball players as people, and those people, in turn, unionized. The university has petitioned the NLRB’s committee to examine Baskets ‘ getting. Eleanor Laws, a judge in the NLRB’s operational regulation, is considering whether University of Southern California men’s and women’s basketball players are NCAA, NCAA, or their school’s or conference employees. The NLRB may have a significant words even though federal judges will likely have the final say about whether school athletes are workers.
But the company’s power is under assault in federal judges, and the result of the 2024 presidential vote will impact important NLRB policies.
According to a company, NLRB administrative law courts are unconstitutionally exempt from the president’s treatment forces, U.S. District Judge Mark Pittman issued a preliminary order against the organization last year. In the context of school sports, this is a crucial choice. If Laws finds that USC players are employees, the university, conference and NCAA could get review by the agency’s board in Washington, D. C., and individually challenge the constitutionality of Laws ‘ order.
The five-member board of the NLRB appoints NLRB administrative law judges, who are only allowed to be removed if a removal action is brought and a separate independent federal agency, the Merit Systems Protection Board, discovers compelling grounds for their appointment.
An NLRB regional director has accused Findhelp, a Texas-based company that specializes in social network technology, of breaking the National Labor Relations Act ( NLRA ). According to the allegations, Findhelp unlawfully fired union organizers and prevented employees from discussing the union. The company requested an injunction from Pittman, who presides in a Texas federal district court, before the NLRB administrative law judge scheduled to appear on September 23.
Findhelp largely persuaded Pittman on the basis of precedent. In Jarkesy v. SEC ( 2022 ), the U. S. Court of Appeals for the Fifth Circuit—which governs Texas federal district courts—found that statutory removal protections for Securities and Exchange Commission administrative law judges were unconstitutional.

In June, the U. S. Supreme Court sided against the SEC in Jarkesy, though its ruling did not directly address whether SEC administrative law judges are unconstitutional. When an agency ( the SEC ) seeks to impose civil penalties, the Supreme Court focused on a defendant’s right to a jury trial under the 7th Amendment. Judges in other federal circuits have rejected claims that NLRB administrative law judges are unconstitutional. However, colleges, conferences, and the NCAA may believe they have a chance to challenge the NLRB and its administrative law judges in federal courts.
The NLRB’s role in college athletes becoming employees is also crucial, given the presidential election. Both former president Donald Trump and vice president Kamala Harris have made it clear that they do n’t consider college athletes to be employees. There is a good chance that neither nominee will win the election because of the campaign’s focus on other issues and the possibility that Harris and Trump wo n’t debate each other again.
However, President Joe Biden’s pick for NLRB general counsel, Jennifer Abruzzo, has played a historic role in advocating for college athletes as employees. She argued in a memo in 2021 that colleges have misclassified athletes as” student-athletes” in order to prevent them from being given workplace protections and the opportunity to organize as a union and that college athletes have statutory rights that are consistent with employee recognition under the NLRA.
Abruzzo’s memo has been cited in numerous legal filings, including those regarding Dartmouth and USC athletes. At the NLRB, the general counsel has a lot of power. The GC provides advice and materials to the agency’s board while overseeing the investigation and prosecution of unfair labor practice cases. If Harris wins the election, she might be inclined to keep Abruzzo.
Trump’s pick for NLRB general counsel during his first term could also prove prophetic. Trump picked Peter Robb, who in 2017 rescinded a memorandum authored by his predecessor, Richard Griffin, that had reached a similar position as Abruzzo: College athletes are employees.
On the other hand, several Trump-appointed judges, including U. S. Supreme Court Justices Brett Kavanaugh and U. S. District Judge Clifton Corker, have authored judicial opinions that praise athletes’ economic rights and besmirch amateurism.
One thing is certain: College sports are not isolated from legal and political conflicts, and these complex outside forces will have a significant impact on whether college athletes are ultimately deemed employees.