The Dartmouth men’s basketball team unionized this month. It's the first ever union for college athletes.
The school announced Monday that it will not enter into collective bargaining in a move that could send the case to federal court.
Professor Michael McCann is the Director of the Sports and Entertainment Law Institute at the University of New Hampshire. He joined NHPR’s All Things Considered host Julia Furukawa to talk about what’s next for the Dartmouth team and what their effort means for college sports as a whole.
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Transcript
Athletes are not currently paid for their hours, so why should the athletes be considered school employees?
Well, the argument the athletes have given and the argument that Laura Sacks, who's the NLRB (National Labor Relations Board) regional director, found persuasive is that the school controls their time in a way that's consistent with employment in terms of practice hours, in terms of travel for the team, in terms of prioritizing athletics over academics. Now, the school, of course, disputes that and there's a debate there.
The other part of the equation is whether they're performing these services in exchange for compensation. Ivy League athletes are not eligible for athletic scholarships. So one could say the argument’s harder for the players to make than, say, at another college in Division I where there are athletic scholarships. But the players argue, and this was also found persuasive, that they receive a number of benefits that are part of compensation. For instance, they have preferential admissions to Dartmouth. Dartmouth only accepts 6% of applicants. In addition, they are able to get the benefits of an Ivy League education.
The other thing to think about is that they get apparel, they get sneakers, they get access to a health facility. So these are parts of the form of compensation that, at least at the regional director level, was found sufficient.
Could there be a domino effect for other schools and student athletes now that this Dartmouth effort is moving forward?
Sure, we could see not only at Dartmouth but at other private schools. It’s going to be private schools that will be able to rely on [Dartmouth’s efforts]. This law, the National Labor Relations Act, governs private employers, not public employers. Dartmouth being employees is not necessarily true of any state university, because that depends on state law. And state laws are all over the board.
There's a separate proceeding going on out west…at USC [University of Southern California] that could essentially lead to the same result. There's also a lawsuit, Johnson v. NCAA. That's in Pennsylvania. It's a federal lawsuit that's now before the Third Circuit.
The bottom line is there are a lot of movements for athletes to be recognized as employees of their schools, and maybe also their conference and the NCAA.
There's still more ahead for the Dartmouth men's basketball team when it comes to this. The school is pushing back and has appealed this NLRB decision. What's next?
The big step will be the NLRB agency board deciding the appeal. And that might not be for many months, potentially.
And there is an election coming, as we know. And it's possible that if [former] President Trump is elected in the fall, he will certainly pick his own NLRB general counsel. The current general counsel, Jennifer Abruzzo, is very much pro-labor, pro-unionization, and she has argued that college athletes are employees. If she's replaced by somebody else, that person could hold very different views. And the general counsel plays a pretty instrumental role at the agency in terms of advising the board. It doesn't mean that the board members would vote a certain way, but the election could end up being a key fact.
But I think it's noteworthy that the process is sort of in an early stage and could ultimately land before the Supreme Court. And what's interesting is that I think when we think about college sports, probably Dartmouth is not at the top of people's list when they think of college sports, but this matter could end up being the matter that the Supreme Court one day reviews.
