Last week, the General Counsel of the National Labor Relations Board filed a complaint against the NCAA, the Pac-12 Conference, and the University of Southern California. The complaint alleged that the defendants misclassified certain football and basketball players as students. It said the players were not, in fact, students, as they’re usually considered, but employees. And that means they had a statutory right to form and join unions.

Predictably, the complaint is drawing a lot of attention. Reclassifying the players would transform college athletics, and college athletics are big business. But there’s more to the story. The complaint also sets out a novel legal theory, arguing that misclassification is itself an “unfair labor practice.” That is, it claims that the defendants violated the law merely by saying that the players were students.

That theory is, to put it mildly, controversial. It has been rejected at least once before, albeit under a different administration. If it sticks this time, it could disrupt the way thousands of businesses classify their workers. It could also chill independent contracting, contradict federal law, and infringe First Amendment rights.

To understand the debate, we have to go back to the early days of federal labor law. The National Labor Relations Act was passed in the mid-1930s. At the time, section 8(1) said employers could not interfere with or restrain protected activity, including union-related activity. The Board quickly applied that language to employer speech. It found employers guilty of “interference” whenever they tried to dissuade employees from forming or joining unions. In effect, it said that in any union campaign, employers had to stay neutral.

That approach was too restrictive for the Supreme Court. In 1941, the Court held that the Board couldn’t base a complaint solely on an employer’s statements. The Board might use the employer’s statements for other purposes, such to show discriminatory intent. But the Board couldn’t charge employers for speech alone. At minimum, employers had a First Amendment right to engage in “noncoercive” speech.

But those assurances still weren’t enough for Congress. So in 1947, Congress added a new section to the Act, section 8(c), designed to protect employer speech. Section 8(c) stated that no view, argument, or opinion would be evidence of an unfair labor practice unless it contained a “threat” or a “promise of benefit.” In other words, as long as an employer didn’t threaten employees or offer them a quid pro quo, it could say what it thought about labor issues.

That has been the law for almost 80 years, and it was applied that way as recently as 2019. In Velox Express, Inc., the Board rejected a complaint similar to the one in NCAA. The complaint alleged that an employer violated the Act by classifying certain workers as independent contractors. But the Board disagreed. It reasoned that classification is nothing more than the expression of a legal opinion. That is, when an employer classifies workers, it merely tells the workers what it thinks about their legal status. And in fact, employers have to do that. Employees and independent contractors have different rights and responsibilities. The parties can’t agree on things like work hours, compensation, or deliverables until they know their respective statuses. So under the Velox complaint’s theory, every employer would have had to roll the dice. By merely stating its opinion, the employer would open itself to potential liability.

Now, the misclassification-alone theory is back. The NCAA complaint argues that an employer violates the law merely by telling workers they’re not employees. So it puts employers in the same bind as the Velox complaint. But the Act hasn’t changed since 2019; section 8(c) still protects expressions of opinion. Nor has the First Amendment changed; an employer still has a constitutional right to speak about labor issues.

So what’s going on here? Why is the General Counsel pushing a theory that’s been rejected by the Board, contradicts the statute, and interferes with constitutional rights?

One suspects two things are going on: one practical, one political. Practically, the General Counsel knows that employers want to avoid unfair labor practice charges. They pay attention to complaints and try to avoid similar behavior. So even if the complaint relies on a faulty legal theory¾one that could never stand up in court¾it will persuade some employers to change their practices. Fewer of them will engage independent contractors.

And that brings us to the political point. Labor unions have long opposed independent contracting. They oppose it in part because independent contractors cannot form unions and so cannot pay dues. Contractors also offer an alternative to full-time union employees. They compete with union members, often successfully. So unions would love to see independent contracting recede, or even disappear. And now, they have the ear of the Biden administration. So it’s no surprise that the General Counsel is trying to tamp down independent contracting.

All of this makes the NCAA complaint understandable as a political maneuver. But none of it makes the complaint defensible as a legal instrument. The complaint still relies on a debunked legal theory. It still contradicts decades of caselaw and the explicit words of the statute. It is still reckless, bordering on frivolous. One can only hope it meets the same fate its theory met the last time around.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].