Can college sports teams unionize? We're about to find out. - 6 minutes read

The Dartmouth men's basketball team filed a petition to unionize earlier this month.
Like all student athletes, Dartmouth faces a number of barriers to unionization under federal labor law.
A new labor case to be heard in November, however, could change everything.

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Dartmouth College is a Division 1 school in the NCAA, competing in the Ivy League conference. They are known as the Big Green. And its men's basketball team just made a big move.

The team filed a petition last week with the National Labor Relations Board, or NLRB, asking to hold a union vote. This is a necessary step before they can hold an official vote to form a union that is sanctioned by the NLRB, an independent federal agency that protects workers' rights to organize.

'While we currently receive many forms of non-traditional compensation, these don't pay our bills, and so we are unionizing to be compensated like other student employees, with hourly wages similar to other student wages on campus or scholarships," players Cade Haskins and Romeo Myrthil wrote in an opinion piece for The Dartmouth, the school's student-run newspaper.

It was a surprising and even exciting move for those following the business of college sports.

The filing comes just two years after the NCAA granted college athletes the right to make money off their name, image, and likeness for the first time. And the ability to unionize would allow student athletes to collectively bargain for improved workplace conditions and even compensation.

For Michael LeRoy, a professor of labor and employment relations at the University of Illinois at Urbana-Champaign, the bid is an important advancement for college athletes looking to achieve economic rights on par with professional athletes.

"It's a very significant development because, conceptually, it takes a case for unionization beyond where it last stood before the National Labor Relations Board," LeRoy told Insider.

The case for unionizing college sports teams is a precarious one, as athletes face significant barriers under federal labor law. But that all could change as a judge gears up to argue a case this November that could eliminate those barriers and open the doors for college athletes to finally organize.  

College athletes face barriers to unionization

The National Labor Relations Act (NLRA) poses two barriers that prevent college sports teams from unionizing.

First, the NLRA states you must be an employee to unionize. The NCAA, along with the colleges that house sports teams, consider players amateurs and, therefore, not employees of their college.

Second, the NLRA does not protect public sector employees' right to unionize.

Certainly, public sector employees can and do unionize — take public school teachers, for example — but their labor relations are governed by state statutes rather than the NLRA. That means that student athletes at public universities, even if they were considered employees, do not have their right to unionize protected by the NLRA.

Why did Dartmouth men's basketball file to unionize, then?

There is an NLRB case that an administrative law judge will hear this November that could open the floodgates for college teams to unionize. 

The National College Players Association — a nonprofit advocating for NCAA reforms that bolster the rights of college athletes — brought the case against the University of Southern California, Pac-12, and the NCAA in May. The nonprofit argued these organizations have violated USC athletes' rights under the NLRA by not considering them employees, according to the filed complaint.

That case will be heard in November. A presiding administrative law judge will have to rule on whether USC, Pac-12, and the NCAA have indeed violated athletes' rights under the NLRA.

If the judge rules in favor of the National College Players Association, it would give both public and private college athletes the right to unionize under the NLRA, LeRoy said. Exactly what unionization would look like, though, is still unclear. 

The general counsel of the NLRB is Jennifer Abruzzo, an outspoken advocate for college athlete unionization. Abruzzo issued a memo in 2021 supporting college athlete unionization and committed herself to pursuing the issue. Abruzzo argued college athletes are, in fact, employees because they "perform services for institutions in return for compensation and subject to their control."

In their opinion piece, players Haskins and Myrthil said the team will fight to obtain employee status.

"Other than a set of rules that the schools impose on themselves through the Ivy League Agreement, there is no reason that basketball players shouldn't be considered student employees like students working any other campus job," Haskins and Myrthil wrote.

Have other college sports teams tried to unionize before?

Northwestern's football team filed a petition to unionize in 2014 and got as far as holding a union vote. However, those ballots were never opened after a five-person NLRB panel ruled against their bid in 2015.

The panel had two primary reasons for this ruling. First, there was the issue of employment: Athletes still were not considered employees.

Second, the panel said Northwestern's unionization would be destabilizing because it would only affect one team in the league. For instance, what would happen if Northwestern went on strike but the rest of their league couldn't, especially public schools in the same league?

"It was unworkable to have one school bargaining for pay and benefits and so forth when the other schools can't," LeRoy said. "And what would happen if Northwestern went out on strike and the rest could not?"

But, given the shifting labor landscape and Aburzzo's dedication to college athlete unionization, it's possible Northwestern's ruling may not hold up, LeRoy said. A decision in favor of the National College Players Association in the USC case would overturn the Northwestern decision. It would pave the way for discussions about the best way forward, allowing the NLRB to explore questions in the coming years about if and how teams could unionize across leagues and divisions, according to LeRoy.

One of those questions will be the repercussions that come with considering student athletes employees. It's possible not all college athletes will be in favor of such a thing, said Irwin Kishner, cochair of the Sports Law Group at Herrick Feinstein, a New York law firm. 

Kishner said the label could give coaches the ability to fire at will or cause universities to cut low-profit teams because of increased expenses. 

"There's a litany of things that come from being an employee and there's a litany of things that come from not being an employee," Kishner told Insider. "To get them all down on a piece of paper at this juncture to predict where all this lands would be very difficult." 

As for when we'll get final answers, Kishner and LeRoy both agreed: It could be years before we know the fate of the union bid by the Dartmouth men's basketball players. 

Source: Business Insider

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