On Thursday, Michael Hsu filed a charge against Notre Dame with the U.S. National Labor Relations Board (NLRB) for "unfair labor practices."
According to a copy of the filed Form NLRB-501, the basis for the claim is that, within the last six months, Notre Dame "violated section 8(a)(1) by classifying college athletes as 'student-athletes.'"
Specifically, Section 8(a)(1) of the National Labor Relations Act deems it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7," which states employees have the right to "self-organize," "bargain collectively," etc.
The University believes the term 'student-athlete' applies to the on-campus experience it provides.
"Clearly, Notre Dame's athletic programs are part of—not separate from—our broader educational mission," the university said in a statement provided to Irish Illustrated. "This is why, over the course of the last 16 years, our student-athletes have achieved a top score for graduation success rates 14 times.
"We will vigorously defend our approach to ensuring that being a 'student-athlete' describes precisely the educational and developmental experience our students receive at Notre Dame."
Hsu, a former University of Minnesota regent, does not appear to have any connection to Notre Dame and filed the complaint on behalf of the College Basketball Players Association.
According to Sportico, the fact that it came from an advocacy group rather than a Fighting Irish player does not invalidate the complaint. Hsu recently levied a similar charge against USC.
Testimony in that case occurred before an administrative judge in Los Angeles this week and could soon proceed to the next stage.
Notre Dame is the fifth school that Hsu has filed an unfair labor practice charge against.
Sources tell Irish Illustrated this type of tactic is expected to become commonplace against private institutions while related matters continue to play out in the courts, on Capitol Hill and within the NCAA.
Hsu reportedly told Front Office Sports' Amanda Christovich that his "strategy is related to the 'joint-employer' doctrine, which means that if you can prove multiple entities (like the NCAA and a school) are employers, then you can grant jurisdiction to public school athletes."
In February, a National Labor Relations Board regional official deemed the 15 Dartmouth men's basketball team members to be university employees under the National Labor Relations Act.
The players voted 13-2 to unionize a month later, but the university says it won't collectively bargain. The matter is now in the midst of a lengthy appeal process.
Of course, university officials have been well aware of those proceedings for months.
Former Notre Dame athletic director Jack Swarbrick, who retired last month and is now athletic director emeritus, appeared on the "Irish Illustrated Insider" podcast in late February and acknowledged that college athletics would "be unsettled for a period of time."
"There's an NLRB case involving USC that I'm sure will result in USC's student-athletes being declared employees," Swarbrick said. "There's a federal case in the Third Circuit in Pennsylvania that will probably declare student athletes employees. Those legal processes will take time with appeals and other things."
Still, Sportico's Michael McCann and Daniel Libit state that Notre Dame football's conference independence "could carry sizable legal significance."
If that's true, navigating the unfair labor charge could provide a new Notre Dame athletic director Pete Bevacqua with a significant test early in his tenure.
He's indicated previously a willingness to take on such a challenge.
"I love the chaos," Bevacqua said on the "Wake Up the Echoes" in late March. "I mean, Notre Dame is what attracted me to this role, but the chaos did, too, knowing that we're going to have to really be on our toes. We can't be caught flat-footed."
Bevacqua will do so buoyed by Notre Dame's Statement of Principles for Intercollegiate Athletics.
It asserts that athletics are "an integrated participant in and contributor to the University's education mission" and that its "coaches share with members of the faculty and other University personnel the obligation to educate, train and otherwise assist in the formation of the students entrusted to them, including by facilitating to the fullest possible extent student's pursuit of their academic interests."
Whatever happens, Notre Dame coach Marcus Freeman has expressed a positive outlook on college football's futurein South Bend, no matter what shape the landscape of college athletic takes.
"If our guys become employees, then we'll figure out what the next step is," Freeman said in response to the Dartmouth men's basketball team on a February episode of "For Good: Stories from Notre Dame" podcast. "But there's so much support for the University of Notre Dame and this football program and athletics, that I believe in my heart, we will always be in a great position to have success."
