Amid alleged hazing scandal, unfair labor complaint filed against Northwestern

Another unfair labor practice charge has been filed with the National Labor Relations Board.

Michael Hsu, co-founder of the College Basketball Players Association (CBPA), filed the complaint against Northwestern amid the alleged widespread hazing scandal that has ensnared the school’s football program. Northwestern fired longtime head coach Pat Fitzgerald on Monday, just three days after he was initially given just a two-week suspension. 

Hsu asserts that the university violated federal law by misclassifying players as student-athletes. He also contends had they been given employee status they would have been better protected from the type of culture and behavior that was allegedly commonplace within the program.

“From an NLRB perspective, it begs the question: If they were actually being treated as employees by Northwestern, would they have had better training? Would there have better oversight over what was happening,” Hsu told On3 in an interview Tuesday. “Because it’s really sad that not only this happened once, but it appears to have been a systemic cultural issue … Almost all of it probably would not have happened. Someone would have cried foul because they would have been put through training and all this other stuff that they should have theoretically had.”

Hsu said a players’ union would “actually be protecting these players right now.” He added that he may amend the complaint – first reported by Dennis Dodd of CBS Sports – to also include the Big Ten Conference and perhaps other schools. 

Term student-athlete is clear ‘misclassification’

Many legal and college sports experts believe that student-athletes are on a slow march toward being classified as employees. That would be a designation that would dramatically reshape college athletics. It would unlock collective bargaining opportunities and perhaps usher in the era of revenue sharing. 

On May 18, the NLRB’s Los Angeles office filed a complaint against the NCAA, Pac-12 Conference and USC for unfair labor practices. In early June, all three parties issued formal responses to the complaint, denying that student-athletes are employees. The NCAA called for the case to be dismissed. In its response, the NCAA asserted that the NLRB should decline to exercise jurisdiction over the NCAA, Pac-12 and USC for several reasons, including “because doing so would create instability in collegiate athletics.” There will be a hearing with an NLRB Administrative Law Judge on Nov. 7 in Los Angeles. 

Hsu hopes that the NLRB also revisits Northwestern eight years after the Board dismissed a petition by the school’s football players, who sought to unionize. One year earlier, in 2014, Peter Sung Ohr, then regional director of the NLRB in Chicago, had ruled that players on scholarship were employees based on the hours they spent each week on the sport and the financial aid they received as compensation. 

Ohr is now the NLRB deputy general counsel under Jennifer Abruzzo, whose consequential memo in September 2021 stated why athletes should be classified as employees. 

In November 2021, Hsu, a former University of Minnesota regent, filed an unfair labor practice charge against the NCAA. He said the NLRB informed him last December that that charge was placed in abeyance – essentially delayed – until the USC charge is resolved because its scope is much broader.

The CBPA, an advocacy group, has worked with athletes from various sports, including basketball, Hsu said, adding that it helps them on a confidential basis based on their needs and the CBPA’s capabilities. 

What happens next with Northwestern?

Specifically related to Northwestern in recent days, Hsu said he was “irritated” that the university continued to use the term “student-athlete” in its news releases. 

“That is a clear misclassification,” Hsu said. “A misclassification for the purpose of [saying], ‘They are not employees. They don’t have any status. They are just students.’ Even though this is flying in the face of what we know is an upcoming trial with USC, the Pac-12 and NCAA.”

As far as reading the tea leaves for the upcoming trial involving USC, the Pac-12 and the NCAA, Hsu believes all three will lose – the question is when that will occur. 

“I think USC is going to lose, the Pac-12 is going to lose and the NCAA is going to lose,” Hsu said. “The question is, are they going to be able to delay the trial? … The defense knows what it is up against. Just like anything else with the NCAA – all the legal stuff – it’s kind of comical to watch because they’re just flailing. They don’t have any real arguments … They are hoping for Congress to step in. Right now, it doesn’t look like Congress is going to step in.”