Dartmouth Union Vote Sparks New Student Athlete Bargaining Ideas

The increasing possibility that college athletes will be considered employees in the near future is threatening the traditional amateur model as lawyers and other observers struggle to envision what the new landscape will look like.

Classifying players as employees under the National Labor Relations Act would require colleges, universities, and their athletic governing bodies to share revenue with players and bargain with them over pay and working conditions.

Cade Haskins, a member of the Dartmouth College men’s basketball team that became the first college sports team to unionize earlier this month, said at the time that he wants benefits like guaranteed health insurance so players don’t have to pay for sports-related treatments out of pocket.

“I’m playing a sport I love, and grateful to be doing it. But it definitely is a burden,” said Haskins, who has had several injuries during his tenure on the team.

But some members of Congress and higher education representatives have warned that the cost of classifying athletes as employees would endanger college players at institutions where athletics don’t make money—leading to the athletics programs simply being shut down.

To add further uncertainty, Dartmouth has said it will refuse to comply with National Labor Relations Board bargaining orders until the college can seek court review of the players’ employment status—a process that could take years.

And there’s a pending NLRB case over whether the University of Southern California, Pac-12 Conference, and NCAA jointly employ the university’s football and basketball players and thus share bargaining obligations.

“It’s exciting, it’s evolution, it’s progress,” said Irwin Kishner, partner and co-chair of the sports law group at Herrick Feinstein LLP. “Fifty years from now, who knows what it’s going to look like? The only thing I can say for certain is that it’s not going to be what it looks like today.”

Conference-Wide Model

The Dartmouth case might have gotten the ball rolling, but it’s the broader NCAA case that’s likely to have the larger impact.

“Once you determine that they’re employees, you then need to figure out who the employer is and what the appropriate bargaining unit is,” said Roberto Corrada, a labor law professor at the University of Denver Sturm College of Law.

Workers organizing in the private sector must declare to the NLRB an appropriate group that will be included in the union and be covered by bargaining.

“The joint employer issue is going to determine how unionization will go in college athletics,” Corrada said.

If the NLRB concludes that the players are jointly employed by the Pac-12 Conference and the NCAA, the simplest way for the athletes to bargain is as a unit encompassing all athletes within that conference, Corrada said.

A smaller, conference-based unit or one that encompasses one of the NCAA’s three larger divisions would make college athletics look more like bargaining among professional athletes. The National Hockey League, National Basketball Association, and the National Football League all have unions that represent players in the entire league under one bargaining unit.

One potential drawback to the conference-wide model is that it makes the unit vulnerable to conflicts between teams, said Michael Elkins, an employment attorney and founder of MLE Law.

“Tom Brady and Peyton Manning were in completely different positions, in terms of bargaining a contract, than a fifth-round draft pick. And that creates conflict with how the union would handle things like wage scaling, striking, et cetera,” Elkins said. “I can imagine that the students at Alabama are going to feel a certain way about the players at Vanderbilt reaping the same benefits from TV revenue.”

“The bargaining unit is going to have to manage its expectations and it’s going to need a union that’s up to the task,” he said.

Under this scenario, it’s mostly likely that a labor organization would start its efforts at private institutions within the conference and then bring in other schools until the unit encompasses the entire conference, Corrada said.

“The conference model makes the most sense because if you go school by school, you can’t address conference-wide issues” like policies related to transfers and name, image, and likeness, Corrada said.

“I don’t see how you get a solution there with just going school by school, because no single school is going to have NIL and transfer portal regulations in their collective bargaining agreement that will make them totally non-competitive versus other schools,” he said.

Other Approaches

If the NLRB finds that players are employees but the NCAA and conference aren’t joint employers, unions’ only option would be to separately organize private institutions under the NLRB’s jursidiction and potentially target public universities in states that favor public-sector unionization, like California, Washington, and Oregon.

“That’s going to be a much more complicated process and takes much longer,” Corrada said. “And it would be almost impossible to create uniformity across your contracts. One school could have completely different views on NIL and transfer policies and that has a wider impact than just at that school.”

That approach also would leave out some schools with the biggest athletics programs, like the University of Texas, University of Tennessee, and University of North Carolina, because they’re located in states that ban public-sector bargaining.

Mit Winter, a sports attorney at Kennyhertz Perry, suggested that the easiest path forward for college athletics would be for schools to set up their own private companies to run some of their athletic programs. Doing so would create a quasi-minor league and resolve many of the legal tangles, he said.

“If they want to have any sort of uniformity in terms of collective bargaining, it would make far more sense for all of the athletes to be employees of private companies,” he said. “It would allow the players to form some sort of association or union and give the schools a level of certainty and stability.”

Private companies owned or affiliated with the universities probably would only house profit-driving sports like football and basketball, Winter said.

That would create a stronger distinction between athletes who are under enough control from their respective schools to be considered employees, and non-employee students who take part in lower-commitment sports and student clubs, he said.

In the meantime, NCAA President Charlie Baker proposed a plan last year that allows participating Division I member schools to invest a minimum of $30,000 per year per athlete, for at least half of their athletes, into a school fund to pay them—but stops short of accepting them as employees.

“We might get some level of negotiation between the players and schools over what forms their profit and benefits take until we get final word on their employment status,” Winter said. “It won’t be true collective bargaining but it might be enough.”