In September of 2021, at an event of college athletic administrators gathered in Washington, D.C., Notre Dame athletic director Jack Swarbrick delivered a jarring statement that startled many in the room.
“Sometime in this school year, somewhere in the legal world, or administrative level,” he told them, “a student-athlete will be declared an employee.”
It took a little longer than he expected, but Swarbrick’s prediction has, officially, arrived two-and-a-half years later: The National Labor Relations Board’s regional director in Boston found that members of the Dartmouth men’s basketball team are employees and granted them the right to unionize. The National Labor Relations Board (NLRB) is the independent agency that enforces U.S. labor law as it relates to collective bargaining.
While not such a surprising ruling — the NLRB has, after all, expressed strongly its belief that college athletes are employees — the decision is another significant step in the march toward employment for all college athletes. Though the decision will be appealed, many legal experts believe that the ruling is a landmark move to further turn athletes into employees.
“This is the first shoe to drop in the long-running effort by college athletes to be declared employees,” said Michael LeRoy, an Illinois professor and expert on labor policy. “It is consequential.”
“If Dartmouth basketball players are employees, then it’s easy to imagine that all other athletes at the collegiate level would also be considered employees,” adds Gabe Feldman, a Tulane sports law professor and an expert on such NCAA matters. “This could be the first domino that leads to full-fledged employee status for many college athletes or it could be like the Northwestern case — a false alarm.”
There will likely be an appeal
The NLRB Boston regional director’s decision on Monday is not unprecedented.
A similar ruling took place a decade ago when another regional director of the NLRB deemed that Northwestern football players were employees and could unionize. However, the NLRB’s national panel overturned the ruling on appeal citing a number of factors.
The board declined to recognize Northwestern football’s unionization, in part, because the NLRB only applies to private employers. Though it is a private school, Northwestern competes in the Big Ten, where, at the time, all other schools were public (the league has since added another private school in USC). The NLRB ruled against jurisdiction, arguing that one school having the ability to collectively bargain while others operate differently would be a detriment to college sports.
In a striking difference between the two cases, Dartmouth competes in the Ivy League, made up of only private schools.
There are more signs, too, that the NLRB will treat this case differently than Northwestern, said LeRoy.
Two years ago, NLRB general counsel Jennifer Abruzzo encouraged entities to file unfair labor charges against the NCAA. In a memo, she deemed college athletes employees under the National Labor Relations Act, a thundering message from the agency’s lead lawyer that invited athletes and athlete advocates to bring forth petitions to unionize.
But an appeal to the NLRB’s national board is only the start of what could be a lengthy process. Any ruling can be appealed in federal court as well.
“There is a long way to go,” Feldman said.
In the meantime, a union election can transpire in which Dartmouth players could vote to unionize.
What does it mean for everyone else?
Based on the ruling in Boston, more college athletes may be more likely now to follow suit. They too could file a complaint with their respective local NLRB regional director.
However, a more significant precedent could be set if the NLRB’s national board and the courts uphold the ruling from the regional director in Boston.
“If this holds, it would be difficult to argue that any DI athlete is not also an employee under the National Labor Relations Act and would also have a right to unionize,” Feldman said.
No matter the appeals decision, the ruling is a further warning to college athletic leaders, Feldman said. The move continues the wave of college athletes getting more rights.
“It’s become a tidal wave,” Feldman continued. “It could open the door to massive salaries at the top end of college sports and minimum wage at the bottom. It’s a further wakeup call to college athletic leaders that the status quo is not sustainable.”
There could soon be plenty more “wakeup calls” as well.
Beyond the NLRB, there are several avenues in which athletes can be ruled employees, including a collective action suit out of Pennsylvania: Johnson v. the NCAA. Meanwhile, the NLRB’s Los Angeles regional office is pursuing unfair labor practice charges against USC, the Pac-12 and the NCAA as single and joint employers of FBS football players and Division I men’s and women’s basketball players. A hearing is ongoing in that case.
What’s next from college leaders?
In appropriate timing, the NLRB’s ruling dropped as some of the most powerful leaders in college sports — the FBS commissioners — met in Dallas over College Football Playoff matters.
For months now, college athletic leaders have publicly pushed back against the notion of college athletes becoming employees. As part of their lobbying efforts with Congress, NCAA and college leaders have encouraged lawmakers to deem athletes as students and not employees.
However, more than four years into the congressional lobbying effort and nearly 12 hearings held, no piece of legislation has advanced out of a committee for a vote.
Some believe that a new model is needed, something that goes beyond NCAA president Charlie Baker’s Project DI, which needs congressional assistance. Such a model would presumably include an athlete revenue-sharing concept, or something similar.
The Big Ten and SEC recently announced a joint advisory group to study the future and potentially arrive at solutions for such issues.
“Clearly, major changes are on the horizon and the longer college leaders go without making the changes themselves, the more likely we’ll continue to see change forced upon them by governmental agencies and the courts,” Feldman said.
Monday’s ruling, while a long way from being final, is yet another shot across the bow of college athletics amateurism.