Jake Sarachek
The place of unions in the sports world is a concept that has been introduced previously. Whenever a professional sports league reaches the end of its current collective bargaining agreement, sports fans around the country hold their breath and pray that the league’s union can get a new deal for the next season. Only eighteen months ago, baseball fans were the most recent to be given the dreaded lockout scare. However, being that college athletics are now an $11 billion-a-year industry, is this a concept that fans of college sports will need to grapple with as well?[1]
The athletes petitioning for recognition differ from those that may initially come to mind when considering that 12-digit annual revenue figure. On September 13th, the Dartmouth Men’s College Basketball Team filed a petition with the National Labor Relations Board (“NLRB”). The fifteen players on the roster will be considered university employees if the petition is approved. They would have the ability to collectively bargain for salaries, benefits, and other working conditions.[2]
Dartmouth’s team is not the first college athletics team to petition for unionization. In January 2014, the Northwestern University Football Team petitioned the NLRB for unionization.[3] The Northwestern petition primarily argued that college football players in high-profile programs devote significant time and physical injury risk to their universities, generating considerable revenue. Yet, they are not compensated beyond scholarships, and they lack the rights and protections of employees.[4]
While the regional director of the NLRB in Chicago ruled in favor of the players, the national board in Washington, D.C., declined to exert its jurisdiction over the case in a unanimous decision.[5] The NLRB’s rationale was that recognizing the Northwestern football team would not advance the purposes of US labor law. Allowing Northwestern’s team to unionize at that time could lead to an imbalance in college athletics if other schools’ athletes could not.[6] This is important to note because, at the time, every school in the Big Ten, Northwestern’s athletic conference, was a public school. Public schools fall under state labor laws and not the federal label laws that the NLRB handles.[7]
Nine years later, though, the landscape of college athletics has changed dramatically. The Landmark case of NCAA v. Alston now permits college athletes to earn compensation for their name, image, and likeness (NIL).[8] At the same time, former Villanova football player Ralph Johnson has an open case in the Eastern District of Pennsylvania against the NCAA asserting that college athletes are employees of their schools and should be compensated under the Fair Labor Standards Act of 1938, in which oral arguments were heard last winter.[9] To add more smoke on the fire, the NLRB’s current general counsel practically invited athletes to take another stab at unionizing when she wrote in a September 2021 memo that she believes football players competing in the highest tier of Division I are employees under the National Labor Relations Act.[10]
So, how does all of this add up for the Dartmouth athletes? The Dartmouth basketball players certainly meet the qualification of a minimum number of hours a week to be considered employees.[11] Division I college athletes routinely give up over 40 hours per week in season. Furthermore, the NCAA’s rationale for not exercising jurisdiction over the Northwestern Football Team works in the Dartmouth athletes’ favor because the entire Ivy League comprises private schools.[12] However, Ivy League schools also do not offer grant-in-aid scholarships to athletes, making it more challenging to make the case for employees.[13] However, the decision in an ongoing lawsuit by current and former Brown University basketball players against all eight Ivy League schools will certainly bolster or weaken the Dartmouth petition.[14]
A separate issue is that Dartmouth Athletics is not a net positive for the school, unlike Northwestern Athletics. The Ivy League does not have a lucrative media contract like the ACC, the Big Ten, or the SEC does. This is the most fundamental question that college athletics must resolve as the decades-old citadel the NCAA has built around universities compensating college athletes continues to crumble: is it only the revenue-generating athletic departments and athletes that deserve the employee designation?
The Dartmouth case can go a long way to clarify this question, which could have a massive ripple effect on the sustainability of college athletics.
[1] Marc Edelman, The Future of College Athlete Players Unions: Lessons Learned from Northwestern University and Potential Next Steps in the College Athletes’ Rights Movement, 38 Cardozo L. Rev. 1627, 1630 (2017).
[2] Lorenzo Reyes, Dartmouth Men’s Basketball Team Files Petition To Unionize with National Labor Relations Board, USA Today (Sept. 14, 2023, 1:06 PM), https://www.usatoday.com/story/sports/ncaab/ivy/2023/09/14/dartmouth-mens-basketball-team-files-petition-unionize-nlrb/70852002007/ [https://perma.cc/7A5S-9AXH] [http://web.archive.org/web/20230930173132/https://www.usatoday.com/story/sports/ncaab/ivy/2023/09/14/dartmouth-mens-basketball-team-files-petition-unionize-nlrb/70852002007/].
[3] Santul Nerkar, Union Push by Dartmouth Athletes Is Distinct from Previous Failed Efforts, N.Y. Times (Sept. 16, 2023), https://www.nytimes.com/2023/09/15/sports/ncaabasketball/union-dartmouth-basketball.html [https://perma.cc/AY63-P2N7] [http://web.archive.org/web/20230930173525/https://www.nytimes.com/2023/09/15/sports/ncaabasketball/union-dartmouth-basketball.html].
[4] Edelman, supra note 1, at 1637.
[5] Id. at 1627.
[6] Id. at 1640.
[7] Id. at 1646.
[8] NCAA v. Alston, 141 S. Ct. 2141 (2021).
[9] Richard Johnson, Explaining Johnson v. NCAA and What’s at Stake in Wednesday’s Court Hearing, Sports Illustrated (Feb. 15, 2023), https://www.si.com/college/2023/02/15/johnson-v-ncaa-court-hearing-employment-status [https://perma.cc/D4DX-2PQW] [http://web.archive.org/web/20230930175036/https://www.si.com/college/2023/02/15/johnson-v-ncaa-court-hearing-employment-status].
[10] Laine Higgins & Louise Radnofsky, Dartmouth Men’s Basketball Team Makes Latest Bid for Unionization by College Athletes, Wall Street Journal (Sept. 15, 2023, 10:01 AM), https://www.wsj.com/sports/basketball/dartmouth-unionization-college-athletes-c59ae73a [https://perma.cc/H62X-7JKY] [http://web.archive.org/web/20230930175335/https://www.wsj.com/sports/basketball/dartmouth-unionization-college-athletes-c59ae73a].
[11] Edelman, supra note 1, at 1632.
[12] Nerkar, supra note 3.
[13] Edelman, supra note 1, at 1644.
[14] Melissa Korn, Ivy League’s Agreement To Ban Athletic Scholarships Is Illegal, Lawsuit Says, Wall Street Journal (Mar. 7, 2023, 4:53 PM), https://www.wsj.com/articles/ivy-leagues-agreement-to-ban-athletic-scholarships-is-illegal-lawsuit-says-e1e7c29c [https://perma.cc/24KZ-L4JG] [http://web.archive.org/web/20230930175745/https://www.wsj.com/articles/ivy-leagues-agreement-to-ban-athletic-scholarships-is-illegal-lawsuit-says-e1e7c29c].