In January, we discussed the numerous legal vectors through which college athletes were growing closer to being considered employees. The interested parties’ goal in this status was for these athletes to collectively bargain for their working conditions and compensation under the NLRA. Legally, balls are still in the air, but last week, Dartmouth College’s men’s basketball team went ahead and voted (13-2) to unionize with the SEIU, the first such instance of this happening within the NCAA.
The Dartmouth athletes seek benefits, including paid time off and a cut of university revenues from spectatorship. If their vote to unionize is allowed to stand, this could transform college sports as we know them.
Let’s retrace a few of the more recent developments on how we got here:
- In 2021, NLRB GC Jennifer Abruzzo suggested that student-athletes are misclassified. She invited college athletes to file petitions for union elections while goading interested parties to file unfair labor charges against the NCAA.
- On February 5, board regional director Laura Sack declared Dartmouth’s basketball players to be employees, and the college’s appeal on this status is pending. Despite a lack of traditional compensation for these players, the NLRB claims that free gear, travel expenses, and “educational” goodies from the university create an employee-worker relationship, and the board refused to halt the union election during Dartmouth’s appeal.
Ultimately, it’s not too much of a stretch to see why this happened. Undergrad and graduate students have been increasingly organizing in recent years, and an AFL-CIO official calls student athletes’ entrance into the field a “very much grassroots-driven” effort that has “been happening for a while.”
Additionally, the SEIU is known to be aggressive during organizing. Yet, do these athletes understand the detrimental effects of unionizing? Sadly, probably not, and negative consequences from around a dozen athletes’ votes could remain long after these basketball players graduate:
- As employees, athletes would not only be able to unionize but also be subject to taxable income, layoffs, firings, reorganizations, and other unpleasantries of employment.
- Athletic programs will likely suffer as a whole since increased labor costs could force universities to cut programs that do not bring in revenue. That opens up the vast majority of college sports to the chopping block, given that only the “big” sports (football and basketball) at select universities can draw enough spectator interest to be profitable.
- Women’s athletic teams, particularly, could be vulnerable to extinction. How this status could jibe with universities’ requirements to adhere to Title IX, which prohibits discrimination based on sex for any entity that receives federal funding, remains a mystery.
- Universities could tip into financial disarray if this shift causes them to lose their access to charitable gifts and student fees via their Section 501(3)c designation.
Another point of uncertainty: The NLRB previously chose to consider unfair labor allegations against the NCAA, the University of Southern California, and the Pac-12 as filed by the National College Players Association. This would only directly affect private universities (including Dartmouth, which is Ivy League), but Abruzzo wants to expand the scope to public colleges.
As we previously wrote, the Dartmouth matter could go all the way up to the Supreme Court, which previously leaned (in NCAA v. Alston) toward granting employee status to college athletes.
