Congress debates whether college athletes should be considered employees

Utah gymnastics coach Carly Dockendorf speaks at the Huntsman Center in Salt Lake City on Wednesday, Dec. 13, 2023. A vehicle lease deal was made available to members of the women’s gymnastics and men’s and women’s basketball programs as part of a name, image and likeness package.
Utah gymnastics coach Carly Dockendorf speaks at the Huntsman Center in Salt Lake City on Wednesday, Dec. 13, 2023. A vehicle lease deal was made available to members of the women’s gymnastics and men’s and women’s basketball programs as part of a name, image and likeness package.

Members of Congress addressed for the first time in a hearing this week perhaps the biggest question in college sports: whether athletes are employees of their universities and have the right to unionize.

While congressional committees have held several hearings the past couple of years on athlete compensation, specifically name, image and likeness, federal lawmakers had not discussed the issue that NCAA and athletics administrators say would ruin college sports. A National Labor Relations Board regional administrator’s decision allowing the Dartmouth men’s basketball team to join a union spurred the House Committee on Education and the Workforce to hold Tuesday’s hearing.

Republicans on the committee, including Utah Rep. Burgess Owens, who says unionization poses an “existential threat” to the future of college athletics, condemned the Dartmouth decision. Democrats, though, like California Rep. Mark DeSaulnier, say the “sky is not falling” and athletes should have a seat at the table through collective bargaining.

Last year, NCAA President Charlie Baker asked Congress to pass a law granting college athletes special status that would affirm they are not university employees and allow them to receive enhanced benefits while protecting athletic programs from one-size-fits-all court decisions. If athletes were made employees, Division II and Division III schools, which have much smaller athletic budgets than Division I schools, would get out of the college sports business, he said.

Several bills proposing to regulate NIL have floated around Capitol Hill but none have gained traction. About 30 states have passed NIL-related laws, including some explicitly stating college athletes are not university employees. Utah passed an NIL law earlier this month, but removed a provision from the initial bill that made clear players are not employees.

The Dartmouth decision could heighten the urgency for Congress to step in.

“In no world should a scholarship athlete be considered an employee for playing basketball,” Owens said, noting Dartmouth athletes don’t receive athletic scholarships, only need-based financial aid.

“Classifying student-athletes as employees is an existential threat to the future of college sports on many campuses,” he said. “The increased costs of unionization and administrative headaches would threaten to make low-funded programs economically unviable, including many women’s sports and small school athletic programs, resulting in fewer teams, few scholarships and fewer opportunities for young people.”

DeSaulnier said the collegiate sports industry rakes in billions of dollars but college athletes who are the reason the industry is so popular don’t share in the profits, adding many college athletes are “exploited” and lack basic health and safety protections. Athletes, including Dartmouth basketball players, he said, are understandably looking to level the playing field and gain a more equal voice.

“Contrary to what we hear today, their efforts do not mean the end of college athletics, and the sky is not falling,” he said.

Former National Labor Relations Board chairman Mark Gaston Pearce told the committee that the current conditions in college sports are “unsustainable and unjust.” He noted that conservative Supreme Court Justice Brett Kavanaugh wrote in the 2021 decision paving the way for NIL that “colleges and student athletes could potentially engage in collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges.”

As opposed to an adversarial approach, collective bargaining ensures athletes have a seat at the table in creating a new institutional structure for college sports, Pearce said.

“Instead of the NCAA and universities unilaterally deciding the outcomes for these crucial issues, athletes will have an opportunity to flex their collective power and have a say in their compensation and working conditions,” said Pearce, executive director of the Workers’ Rights Institute at Georgetown Law.

Matthew Mitten, a Marquette law professor and director of the National Sports Law Institute, told the committee that characterizing college athletes as employees and allowing them to collectively bargain would “probably substantially” increase the costs of producing collegiate sports. A “very significantly adverse socially undesirable” consequence would be the elimination of nonrevenue sports or downgrading them to club sports at many smaller schools.

Mitten also said it would raise numerous “unprecedented” federal labor law issues as well as create conflicts with the Fair Labor Standards Act and Title IX.

“It could result in less favorable treatment of student-athletes, including their being fired for unsatisfactory sports performance, more restrictive limits on their earning capacity or ability to transfer schools,” he said.

Former Providence hockey player Tyler Sims told the committee that he’s “thrilled” to see positive changes and benefits for college athletes over the past decade and said he encourages them to continue to speak up for themselves and their teammates. But, he said, he also values the educational purpose behind college athletics and doesn’t believe deeming them employees would result in a positive outcome.

“The reliance of many men and women on college athletics for the opportunity to receive a quality education should not be jeopardized by their classification as employees,” he said.