Arguing that NLRB Regional Director Laura Sacks’ decision to recognize Dartmouth College men’s basketball players as employees within the meaning of the National Labor Relations Act will “affect and have a far-reaching impact” on all college athletes “current and future” and “the NCAA Membership as a whole,” the NCAA Thursday asked the NLRB for permission to file an amicus brief in support of Dartmouth.
The NLRB is currently evaluating whether to hear Dartmouth’s appeal (technically called a request for review). As Sport detailed, the NLRB hearing an appeal — let alone siding with Dartmouth — is anything but automatic. The board, which currently consists of four members (three of whom were appointed by Democratic presidents), only accepts appeals when there are “compelling reasons” and when the regional director has decided a substantial factual issue that is “clearly erroneous.” and such error “detrimentally affects” rights or “a substantial question of law or policy is raised” because the regional director’s decision departs from NLRB precedent.
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The Dartmouth players, who have been Dartmouth employees since February, unionized in March and are represented by SEIU Local 560. Dartmouth has refused to negotiate with the union, which has the right to negotiate wages, hours, insurance, health care, disciplinary procedures, support services and other mandatory employment matters.
If the NLRB accepts the NCAA’s 32-page amicus brief, the agency’s board will see that, like Dartmouth, the NCAA portrays the “unprecedented” nature of college athletes as employees in a problematic light.
Although US colleges have a long history of hiring students – some of whom form unions that negotiate with their college (for example, students employed in dining services at Dartmouth have unionized and Bargains at Dartmouth with that union) – the NCAA stresses that the NLRB, federal courts, the U.S. Supreme Court and Congress have “never declared that student-athletes are employees” under the NLRA.
The NCAA also states that recognizing a single team as a bargaining unit would destabilize labor relations. The association stresses that NLRB cases involving professional sports have involved “league-wide bargaining units” rather than one team.
This type of argument has resonated with the NLRB in the past. A decade ago, the NLRB argued that because Northwestern University is the only private college among the Big Ten, and because the NLRA only governs private colleges while the employment of athletes at public colleges is governed by different state labor laws, it would undermine Labor relations recognize Northwestern football players as employees, while players from Michigan, Ohio State and other Big Ten schools remain non-employees and would be outside the NLRB’s jurisdiction.
The NCAA admits that Dartmouth’s situation is structurally different from that of Northwestern, since the Ivy League consists of eight schools, all private. However, the NCAA argues that the NLRB should view Dartmouth in the broader context of Division I sports, which includes numerous public universities. The NCAA notes that Dartmouth basketball was played at five public universities last season and that of the 68 schools that competed in men’s March Madness, 48 were public.
The NCAA also outlines what can only be described as a parade of horrible things should Dartmouth basketball players remain employed. Such a statute, the NCAA asserts, would “marginalize the importance of educational programs” and “isolate, rather than integrate, student-athletes as fundamental parts of the whole – the student body.”
Expect a backlash from the SEIU on these types of claims.
As noted above, Dartmouth employs and negotiates with unionized student workers and there is no indication that the agreement marginalized their studies or segregated them from their classmates. In fact, one dining services employee, Cade Haskins, managed to balance his job in dining services, studies and role as a forward on the basketball team. Furthermore, in concluding that the players are employees, Sacks notably emphasized that Dartmouth (like other DI programs) substantially controls the players and places them in a position where athletics are prioritized.
The NCAA finds itself in a tricky situation, arguing that the job would harm college sports as the NCAA expects solve three antitrust cases (House v. NCAA, Carter v. It is Hubbard v.) in part through the adoption of a pay-for-play model. The agreement, which has not yet been finalized and requires approval from U.S. District Judge Claudia Wilken, provides that colleges, like teams in a professional league, can pay athletes a salary cap and revenue-sharing structure.
The NCAA tries to address the presence of the agreement by insisting that college athletes who enter into NIL agreements with schools “have no influence over this matter, even if Dartmouth men’s basketball players receive NIL payment directly from Dartmouth at some point in the future.” . A likely counterargument is that a school labeling direct payment as “NIL,” as opposed to compensation for work, could prove more formal than substantial. The NIL must ensure that college athletes can use their right of publicity to sign endorsement and influence agreements. However, particularly with many NIL collectives closely tied to schools, NIL has evolved (or devolved) into a compensation scheme for recruiting and retaining athletes at school – as if NIL were equivalent to a signing or retention bonus offered by an employer. .
The NCAA also suggests that if the NLRB finds that college athletes are employees, the agency will have acted outside the authority granted by Congress. Citing the US Supreme Court ruling decision in West Virginia v. Environmental Protection Agency (2022), where the Court limited the EPA’s authority to regulate greenhouse gas emissions based on the argument that Congress had not delegated such authority, the NCAA asserts that major policy decisions such as whether college athletes are employees , should be decided by Congress, not the agencies, unless the agencies can identify clear congressional authority. One rebuttal is that the NLRB has long determined whether workers count as employees, and in fact the agency’s clear expertise, as authorized by federal law, is on this issue.
The reference to West Virginia v. EPA could foreshadow a potential legal debate if courts eventually decide whether college athletes are employees: Does the NLRB have the authority to determine whether they are employees?
Expect many more developments on this topic in the coming months.
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