NLRB to NCAA: College Athletes Are Employees
Because, duh.
Dear readers,
Happy Super Bowl Sunday. In a break from Southpaw tradition, we won’t be bashing on the NFL or the Super Bowl today. Instead, in keeping with some of our recent reporting about the NCAA, we’re discussing a fascinating development in the world of college sports.
Last issue, we reported on the NCAA’s refusal to acknowledge the plain fact that its athletes are employees, even as the conference devises increasingly hair-brained schemes to allow athletes to earn money. And in September, we told you about a potentially seismic union drive at Dartmouth University. Now, these things are colliding, and that’s the topic of our newsletter this week. Thanks as always for reading.
-Ian and Calder
In an op-ed in the Dartmouth campus newspaper in September, two men’s basketball players explained why they filed a petition with the National Labor Relations Board seeking to join the Service Employees International Union (SEIU).
“The age of amateurism and the brazen exploitation of athlete labor and intellectual property should be over,” the players, Romeo Myrthil and Cade Haskins, wrote.
Earlier this week, the NLRB agreed. Laura Sacks, the board’s regional director in Boston, said that the Dartmouth athletes are employees of the college who are guaranteed the right to join a union. Dartmouth and the NCAA are expected to appeal the decision, but the basis of Sacks’s decision was interesting nonetheless: She argued that Dartmouth players are already being compensated as employees in the form of free tickets and free athletic gear, so the university must also recognize their right to unionize. Dartmouth had tried to stop the petition by arguing that the in-kind payment that athletes receive does not constitute payment, at least not in a meaningful enough sense to grant players collective bargaining rights.
Now, a national NLRB panel will review the decision. In 2014, a similar situation occurred when football players at Northwestern University tried to unionize, the regional NLRB sided with the players, and the national panel reversed the decision, siding with the NCAA. But this is an entirely different moment. Joe Biden’s NLRB has been markedly friendlier to unions than Barack Obama’s was, and even the ultra-conservative Supreme Court has recognized that the NCAA’s amateurism model is probably illegal. Moreover, the economics of college sports have changed dramatically in the last decade. In 2014, before college athletes could sign sponsorship deals and collect other “education-related compensation,” it was reasonable to argue that athletes weren’t “paid” for their labor and therefore were not guaranteed the right to unionize. But today, as athletes earn hundreds of thousands of dollars for their services, that argument is much harder to sustain.
Assuming the decision stands on appeal, all that’s left is for the Dartmouth men’s basketball team to have a simple up/down vote on whether they want to join the union. If at least eight of the 15 players vote for the union, they’ll be recognized and can start collectively bargaining with Dartmouth. And if they do, the Dartmouth situation could also easily serve as something of a test case for the NCAA more broadly. We’re far out from the Dartmouth men’s basketball team releasing its first contract proposal to the school, but we hope that their proposal will include a straightforward — but, for the NCAA, radical — demand: pay us wages for our labor.
That this push is happening among the Dartmouth men’s basketball team rather than, say, the University of Alabama football team might make it seem like it’s a lower-stakes argument. But the test is important for this reason: if Dartmouth’s men’s basketball team can collectively bargain for salaries, the floodgates will open. And rather than petition the NCAA or take them to court, teams across the country can form unions (over the objection of the NCAA, to be sure) and try to get paid.
These efforts will assuredly happen in fits and starts, and not all athletes will prove to be as instinctively pro-union as the ones at Dartmouth. But these Dartmouth students have paved a path that could break open the industry and force the NCAA to meaningfully amend its amateurism model. Now, it’s just up to athletes around the country. They’ve seen — and hopefully will continue to see — that collective action can work. Whether this becomes a one-off incident or the start of something much deeper depends on what they do next.
We’ll see what happens, but we trust the kids a whole lot more than we trust the NCAA.
RODNEY’S ROUNDUP
Do you want to read about . . .
. . . the NFL’s broken promises to athletes with head trauma? “The Concussion Files,” by Will Hobson in The Washington Post (January 31, 2024).
. . . how sports gambling swallowed the Super Bowl? “The Super Bowl of Gambling,” by Dave Zirin in The Nation (February 9, 2024).
. . . another instance of the NFL’s stinginess? “Why artists perform at the Super Bowl halftime show if they barely get paid,” by Alex Andrejev in The Athletic (February 11, 2023).