Last month, the Boston Regional Office of the National Labor Relations Board (the “NLRB”) ruled that members of the Dartmouth men’s basketball team are employees and as such have the right to unionize. Wasting no time, yesterday, the Dartmouth men’s basketball team voted 13-2 to unionize. Many educational industry onlookers saw this as the necessary next step in granting employment status to all college athletes – not just the national powerhouses.
Although the decision is expected to be appealed, there is no doubt the decision, if upheld, will mark a seismic shift in collegiate athletics. Why? Because if Dartmouth men’s basketball players are employees, then arguably all collegiate athletes, both men and women, in all divisions, should also be considered employees eligible for unionization and maybe even compensation.
Why Does this Sound Familiar?
For those of you who follow college athletics closely or who happen to be closet labor and employment law buffs, you will know the recent Dartmouth NLRB decision is not unprecedented. In fact, a similar ruling was issued nearly a decade ago when the Northwestern football players were determined (by a different Regional Office of the NLRB) to be employees and able to unionize. However, back then, a unanimous NLRB overturned that decision.
One of the reasons the NLRB overturned the lower decision was because the NLRB only has jurisdiction over private employers. Although Northwestern is a private school it competes in the Big Ten athletic conference, which, except for Northwestern, was comprised exclusively of public universities at that time. The NLRB found it should not exercise jurisdiction over the matter because permitting one school in the conference to collectively bargain (and therefore pay their athletes) and not the others would be detrimental to college athletics because the playing field would no longer be level among different schools. While some found this argument weak, it carried the day.
What’s Next?
Fortunately for the Dartmouth men’s basketball team, the above argument will not be an issue this time as Dartmouth competes in a conference composed entirely of private schools, the Ivy League. Likely even more important, the NLRB’s General Counsel (chief prosecutor), Jennifer Abruzzo, has previously come out strongly in favor of student-athletes being treated as employees protected under the National Labor Relations Act.
Despite all of this, the process will not be a slam dunk for the basketball team (sorry, we could not help ourselves). While the next step is a hearing before a pro-union, Biden-appointed NLRB, the following step(s) will be the federal courts and what happens there is uncertain.
Both Dartmouth and the NCAA have come out strongly against the decision insisting that their athletes are not employees but rather unpaid amateur students. The NCAA also predicts dire consequences for college athletics if athletes become subject to the NLRA (and other federal and state employment laws). For example, if athletes are “employees” under the wage and hour laws, they are entitled to pay- which is a direct violation of the NCAA’s prohibition against “pay for play.”
As a result, we expect an exhaustive legal battle that will take years to play out. Unfortunately for Dartmouth and the NCAA, these legal challenges will work their way through a court system that recently delivered a major win to college athletes in an antitrust case that went all the way to the Supreme Court. If that is where this latest case ends up, it will be heard before many of the same justices who unanimously found against the NCAA when it decided the NCAA’s imposition of strict limits on compensation for student-athletes for education-related benefits violated antitrust law.
While the appeal is pending, we expect to see an influx of other petitions filed by other student-athletes to have their teams unionized. Union activity on college campuses is already high; this decision will likely just make it higher.
If the student-athletes are ultimately successful, these actions could lead to a complete upheaval of athletic programs on college campuses. Imagine if colleges can give their star athletes massive salaries. The smaller programs will almost never be able to attract top talent which means only the richest few will be competitive. We may have seen our last Cinderella story.
Closing Thoughts
The time seems right for the NLRB to act on this issue. With the strong pro-labor tailwinds currently in Washington, D.C., it seems likelier than not that this ruling will be upheld by the NLRB. What happens on appeal to the federal courts is anyone’s guess and could ultimately be decided by who wins the White House later this year.
We will monitor this issue closely and provide our readers with updates as they become available. Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.