WaPo (“NLRB official says Dartmouth men’s basketball can unionize. What’s next?“):
A regional director for the National Labor Relations Board pushed college sports a bit further from amateurism Monday when she ruled the Dartmouth men’s basketball team can hold a union election — which would mean the athletes are employees of their school.
“Because Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform that work in exchange for compensation, I find that the petitioned-for basketball players are employees within the meaning of the [National Labor Relations] Act,” Laura A. Sacks wrote in her ruling. And each word registered on college sports’ Richter scale.
The school will appeal the decision, a Dartmouth spokeswoman said in a statement Monday night, the next step in what is expected to be a lengthy process. The spokeswoman also said the school believes “these students are not employees.”
In 2015, a regional director ruled Northwestern’s football team could hold a union election, only for the NLRB to dismiss the petition and maintain the status quo. But college sports — and the conversation about whether its athletes should be employees — have evolved in the nine years since Northwestern’s case.
Since July 2021, athletes have been able to profit off their name, image and likeness (NIL) through brand deals or de facto salaries from donor-funded groups called collectives. Beyond Sacks’s decision, which followed a four-day hearing in October — after all 15 members of the Dartmouth team filed a petition in September to unionize — the NLRB is in the middle of a trial that will decide whether Southern California’s football, men’s basketball and women’s basketball players are employees of their school and the Pac-12 Conference. And then there are the many antitrust lawsuits threatening to further upend the college sports model.
“There are a couple of key things in the environment that support this effort that weren’t in place during the Northwestern push,” said Ramogi Huma, executive director of the National College Players Association. “A big one is NIL pay. When the full board decided not to assert jurisdiction in the Northwestern case, they claimed this is a system that typically needs common rules. They talked about keeping a level playing field. NIL makes it very clear that you don’t need common rules. There are different NIL payments and mechanisms from campus to campus, from state to state, across the nation. And college sports have not collapsed. I think that has been made clear.”
A date for the election hasn’t been set, though it’s expected to be in the next few weeks. But even with Dartmouth appealing, the players can hold an election. That’s where a key difference from 2015 comes into play: Unlike with Northwestern, the ballot for this election will be counted and public, meaning the NLRB would know how the players voted while deciding.
If the Dartmouth players ultimately unionize, they could gain the ability to collectively bargain with the school over compensation and other working conditions. Huma, who’s leading the efforts in the USC case, added: “As much as we celebrate NIL, that’s not changing the economic exploitation in college sports. The average athlete doesn’t get anything significant when it comes to name, image and likeness in Division I. It has to be corrected.”
This development strikes me as inevitable. While there are good competitive balance rationales for the “amateurism” model that has governed college athletics for a century and a half, there’s simply no pretending that very-high-level college football and basketball aren’t professional sports in all but name. They are, after all, multi-billion-dollar businesses in which, until very recently, everyone but the athletes themselves were cashing in.
Less than three years ago, a unanimous Supreme Court ruled that NCAA limits on compensation amounted to restraint of trade in violation of anti-trust law. A week later, the NCAA reluctantly approved “Name, Image, and Likeness” rules that, because of their toothlessness, amounted to pay-for-play and free agency that professional athletes would envy.
The unionization of athletes, combined with collective bargaining and a contract system, is not only inevitable but necessary. Right now, it’s a Wild West model with no meaningful controls or even understanding of what the basic rules of the game are.
To be sure, this ruling doesn’t get us there.
The NLRB does not have jurisdiction over public universities. That came into play in the Northwestern case because the board said Northwestern unionizing would create an uneven labor environment in the Big Ten Conference, which has a mix of private schools (such as Northwestern) and public (such as Michigan, Ohio State and Iowa). Doubling down, the board made the same case with how a majority of Football Bowl Subdivision programs are at public schools.
The Ivy League, on the other hand, is made up of eight private universities. That could, in theory, help the Dartmouth players. It also makes it fairly easy to see how an eventual win for them could scale across the conference. How it could apply to public-school athletes — or how it might affect international athletes at any university — remains unclear.
But, if the NCAA and/or the major conferences (of which we are now down to four, down from five last season and six just a few years ago) don’t voluntarily adopt an employer-employee model with the players, the courts will almost certainly force it upon them. The sweeping and unanimous nature of the 2021 Supreme Court case (NCAA v Alston) just about guarantees that.
Further, it’s simply in the long-term interest of the sport. On3’s Andy Staples:
“The presidents of the university still don’t want them to be employees. I imagine if you’re [Southeastern Conference commissioner] Greg Sankey, if you’re [Big Ten commissioner] Tony Petitti, your school presidents are telling you, ‘we still don’t want them to be employees.’ But if you are them, you are telling those school presidents, ‘we may not get that choice. So if we don’t get that choice, how do we handle this?’”
Allowing athletes to unionize would be beneficial for the way college sports is changing at the moment. With new wrinkles such as NIL and the transfer portal, things have been described as the “wild west” in their current state. A union could potentially provide solutions to those programs.
Under a union, administrators would be able to bargain with college athletes to create a salary cap much like in pro sports. It could also allow them to put limits on how often a player is able to transfer.
“Do you want a salary cap?” Staples asked. “Do you want rules that govern player movement so that they’re not free agents? Players aren’t free agents every year now, they’re free agents every week. They can go and hold schools hostage for NIL money. If you wanted a situation where they could move once every two years or once every three years, there’s a way to do that.
“The way you do that is you bargain with them. You get them to agree to it and then they can’t sue you. That’s what the NFL has. That’s what the NBA has. That’s what Major League Baseball has.”
It’s undeniable that college sports is starting to look like the pros more and more these days. Sankey and Petitti have even teamed up to create an advisory group to improve college athletics. The Big Ten and SEC are continuing to grow in power, with the conferences now containing the majority of college football powers.
It’s starting to feel not a matter of if, but when college athletes will be allowed to unionize, and this situation at Dartmouth could be what sparks change at other places. In the end, it should prove a positive thing that create more organization for the sport.
“The players have it as good as they’re ever gonna have it right now,” Staples said. “They have all the leverage in this situation. There will come a point where the schools wise up and they’ll either negotiate with them or they’ll figure out a way to make rules that will not get them sued into oblivion.
“If the players end up having a representative associate that bargains for them, I don’t think it would be a particularly strong union. I don’t think it would be as strong as the Major League Baseball or NFL or any of those unions.”
In a regulated market, the very best players have considerably less leverage than in an unregulated one. (See Major League Baseball contracts vs National Football League contracts.) But there are also far more protections and benefits for the lesser players. And, in the case of college ball, where the overwhelming number of players never see a professional paycheck—let alone make tens of millions of dollars—that’s a big thing.
The upside of contracts and CBAs for the commissioners and presidents is stability and predictability.
From a business standpoint, they know what they have to pay out in labor costs several years out. They’re much less susceptible to lawsuits. And they can enforce a single set of compensation rules for everyone.
From a sporting standpoint, we avoid a situation where the schools with the richest alumni can buy the best players. And coaches can sign and develop players without having to constantly “re-recruit” them.
