Editor’s note: This story has been updated in the wake of the Dartmouth men’s basketball team’s successful vote to unionize on Tuesday afternoon.
The NCAA inches closer every day to a tipping point of dramatic overhaul. Years of tectonic shifts around college sports could soon usher in an era its leaders and administrators have long tried to avoid: the treatment of college athletes as employees.
The next milestone arrived Tuesday, when the Dartmouth men’s basketball team voted 13-2 in favor of forming a union. The university continues to fight a National Labor Relations Board regional director’s finding that the basketball players are employees and entitled to union representation, but the effort is just one of several concurrent legal battles challenging the bedrock principle of amateurism that the NCAA has long prided itself on maintaining.
Meanwhile, in the past three months federal judges have blocked the NCAA from enforcing rules barring the use of NIL deals in recruiting and rules that require a multiple-time transfer to sit out for a year before competing. Other ongoing lawsuits take aim at the organization and schools themselves for violating federal antitrust law by restricting athlete compensation. An unfavorable ruling in any one of multiple courtrooms across the country could send the NCAA careening into its uncharted new world.
“With these cases that are addressing one rule at a time, it’s like pulling out one piece of that Jenga puzzle, and you don’t know how many pieces need to be pulled out before the whole thing collapses,” said Gabe Feldman, a sports law professor at Tulane. “Maybe no single one would bring down the NCAA as we know it. But if you lose multiple (cases), that might be enough to knock down the NCAA as we know it. Or you can look at the big antitrust cases — whether it’s the House case, the Carter case — and they’re just knocking the whole puzzle down.
“Either way, we end up with all the pieces on the ground. The question is whether it happens one piece at a time or all in one fell swoop.”
To understand how the many separate cases intersect, The Athletic spoke to nearly a dozen sports law experts over the past month. Every single one considers it an inevitability that college athletes will eventually be considered employees. The specific employment model for that will come down to several factors, but these experts believe it’s time to discuss the likely repercussions of that sea change. It’s now a matter of when, not if.
From a legal decision to a new business model
A victory for the Dartmouth players’ unionization efforts could motivate other private schools in conferences with more diverse membership than the all-private Ivy League to organize themselves. If the ongoing trial into an unfair labor practice charge in California confirms that USC, the Pac-12 and the NCAA should be considered joint employers of athletes, that could allow all athletes to unionize, regardless of the state they live in or type of school they attend.
A third case currently in federal appeals court, Johnson v. NCAA, argues that college athletes should be treated like other student workers on campus and should be entitled to hourly wages at or around the minimum wage. Each outcome would pave the way for a different business model.
Some of the consequences will be simpler than others.
“The notion that you can’t be both a student and employee is false,” said Paul McDonald, lead attorney for the plaintiffs in Johnson v. NCAA. “All you’d have to do is take the NCAA timesheets that are already mandated by bylaws for countable athletically related activities. You take those and put them in the exact same system that you have for the kid selling hotdogs, or the kid working in the library or the kid who works at the bookstore.
“It’s as simple as that. … You would literally treat the athletes the same way you treat the other kids who work on campus.”
McDonald believes that the most complicated part of an employee-employer relationship is that athletes might need language in their employment contracts or at-will agreements that covers termination. McDonald would suggest adopting some of the language in current NCAA rules preventing schools from reducing or revoking scholarships based entirely on athletes’ athletic ability. But realistically, there’s no avoiding that if athletes don’t live up to the terms of their contract, they could be fined or fired, much like their counterparts in professional sports. Those who work around major college sports understand that coaches push players to transfer or retire already, but employment would crystallize schools’ ability to cut players — which may not sit well with all involved.
That would appear to be where unions come in, but it’s not that simple.
If the Dartmouth men’s basketball team prevails despite the school’s challenges, players could collectively bargain with the university regarding wages, hours and any other terms or conditions of their employment.
The Dartmouth athletes’ vision for an Ivy League players union (either for just men’s basketball players or for athletes in all sports) that negotiates with the conference is not far-fetched. In professional sports, all of the owners get together and negotiate one agreement with their labor that covers the entire league. A similar multi-employer agreement could exist within an athletic conference, in theory.
If a conference or the NCAA were deemed a joint employer, as the unfair labor practice charge against USC, the Pac-12 and the NCAA contends, that decision would drastically broaden the scale of students permitted to unionize. The Northwestern football team’s 2015 bid to unionize was rejected by the NLRB because Northwestern was the only private school in the Big Ten, competing against public schools over which the NLRB does not have jurisdiction.
“A finding in either that a conference or the NCAA itself is an employer would have a dramatic impact because that could be a way that the NLRB and unions could kind of rope in public schools,” said Joshua D. Nadreau, partner and vice chair of the labor relations group at Fisher & Phillips LLP. “If they’re going to be setting rules and regulations about what these athletes can and can’t do, and how much practice time they can have and athletic activities and whatnot, the union would have a right under labor law to say, look, you’re setting the terms and conditions of my employment, you’re my joint employer.”
That kind of finding would allow all athletes to unionize, regardless of the state they live in or type of school they attend. From there, it would be up to the athletes to decide who wants to organize and how.
The speed of those movements will depend on several factors – state-by-state differences in labor law and the fact that most conferences have a mix of public and private institutions could complicate matters – but the successful unionization of one group of employees can motivate others. If only private-school athletes are allowed to organize, the NCAA would have a conundrum considering it has largely tried to treat all college athletes similarly.
But every public comment made by NCAA president Charlie Baker over the past year indicates that any model involving employment won’t be the organization’s first choice. And at the individual university level, voluntarily deeming athletes as employees might be too big an ask.
“A majority of the major revenue-generating institutions are public schools that happen, for the most part, to be in states that are not fairly progressive when it comes to labor law and union density,” Nadreau said. “The likelihood that schools in the SEC or Big 12 or the standard southern, Southeast, Midwest-type schools are going to willingly sign on to something that implicates, nominally, they’re employees is probably pretty small. But this is a legitimate question, and it’s also a question for our elected representatives.”
How would the unions work?
In professional sports, players unions often lean on the leadership of veterans who are secure in their standing. Will college sports, where the player pool completely turns over every 4-5 years, struggle to unionize without that support?
The recent unionization surge among graduate student employees points to a solution for organizers: Once a union is in place, it would negotiate multi-year contracts that will remain even after initial union leaders move on, and those recruited to join the union would be charged with knowing what’s in the contract and enforcing it.
Union members would also need to be willing to strike, as