Unionizing Student Athletes Called ‘Existential Threat’ by GOP

Republicans and university athletics representatives testifying at a House panel sounded alarms about college athletes organizing in the wake of Dartmouth College’s men’s basketball team’s historic vote to unionize with the Service Employees International Union.

As March Madness drives massive crowds to college basketball games, lawmakers discussed whether student athletes should be classified as employees in a joint hearing held by two House Education and the Workforce subcommittees Tuesday.

While Congress has held several hearings over the past few years on name, image, and likeness rights for college athletes, the subject of employee classification had been less formally debated. But the decision by a National Labor Relations Board regional director to allow Dartmouth’s students to hold a union election has many in Congress concerned it will change the nature of college athletics.

“The Biden NLRB is the most activist, pro-union government agency in history, and it has taken this opportunity to declare student athletes to be employees,” Rep. Burgess Owens (R-Utah.) said in opening remarks at the hearing. This “is an existential threat to the future of college sports on many campuses,” said Owens, who chairs the Higher Education and Workforce Development subcommittee.

Allowing students in college sports to unionize will open the flood gates to a myriad of unintended consequences, university representatives and legal observers told the panel, which also included members of the Health, Employment, Labor, and Pensions subcommittee.

“The NLRB’s regional director’s decision in Dartmouth was so broad that NCAA Division II and III student-athletes, college students who participate in non-athletic clubs, and actually high school students could be deemed employees,” said Jill Bodensteiner, director of athletics at Saint Joseph’s University.

Bodensteiner noted that the decision to classify the players as employees could also change depending on the makeup of the board, allowing it to “flip back and forth every four years.”

Other potential complications Bodensteiner cited in her testimony include how college athletes’ substantial financial aid and scholarships are currently tax exempt, but wages would be subject to federal, state, and local taxes. Classifying student athletes as employees could also be detrimental to international students, who may no longer be eligible for a student visa, she said.

In 2015, the NLRB declined to assert jurisdiction over football players at Northwestern University, denying them a union representation election. The board “got it right” then, and student athletes shouldn’t be classified as employees under the National Labor Relations Act, said Tyler A. Sims, a shareholder at Littler Mendelson PC.

“In a typical workplace or professional sports, employees must perform well or they risk losing their jobs,” said Sims, a former college and professional hockey player. “Could my tenure with the school be terminated at any time if I wasn’t playing well? Would I have time to work through it and try to improve? What if the school did not agree to our demands and the union called us out on strike, an employer is not required to pay employees on strike, could I still go to class? Would I have to pay out of pocket for my tuition?” Sims hypothesized.

‘A Seat at the Table’

Supporters of the NLRB’s decision in the Dartmouth players’ case disputed the lawmakers’ and witnesses’ framing of the issues, however.

Opponents of college athletes’ ability to unionize who use the 2015 NLRB decision to make a case against students’ rights to organize aren’t “exactly accurate,” said Mark Gaston Pearce, who served as NLRB chairman in the Northwestern case.

“The board never addressed whether or not these football players were in fact employees; what they did was decide the case based on jurisdiction,” Pearce said.

Northwestern was the only private school in its division, and there may not have been a “reasonable, cooperative, and sensible” atmosphere for collective bargaining, he added.

Moreover, the board was “not ready to be able to insert themselves in a situation where it may be chaotic, given the dynamics of a private sector school within a sea of public sector schools,” he said.

Pearce noted in his remarks that things have changed over the last nine years, and college athletes should have a “seat at the table” to negotiate working conditions, such as how long they can practice and how much traveling they should do in order to keep good academic standing, he said.

The US Supreme Court’s 2021 landmark NCAA v. Alston case opened the door to student athlete compensation, and the NLRB extended unionization rights to students working as research and teaching assistants in its 2016 decision in Columbia University. Most recently, board attorneys are arguing the NCAA, the University of Southern California, and the Pac-12 Conference jointly violated federal labor law, Pearce said.

The Columbia decision is a success case for students who want to organize, and serves as an example to college athletes, Rep. Joe Courtney (D-Conn.) said during the hearing. While the witnesses were divided over many of the issues discussed, all agreed that college athletics need to change, he said.

“We’ve got to come up with a better plan,” Courtney said. “I think the right to unionize would provide some external pressure to force colleges and universities to think and re-imagine how we treat student athletes.”