A decision by the NLRB that student-athletes are employees capable of unionizing could lead to more questions than answers.

Two professional sports players’ unions and a sports council representing several other professional players’ unions came out in support of the Dartmouth men’s basketball team’s ability to unionize and collectively bargain in an amicus brief filed with the National Labor Relations Board (NLRB) on June 21, 2024. Specifically, the National Basketball Players Association and National Hockey League Players’ Association, along with a sports council representing the National Football League Players Association, Major League Baseball Players Association, Women’s National Basketball Players Association, National Women’s Soccer League Players Association, Major League Soccer Players Association and other associations, submitted a brief supporting the team’s attempt to unionize and collectively bargain with the school.

Background

In February 2024, NLRB regional director Laura Sacks concluded that Dartmouth men’s basketball players are employees within the meaning of the National Labor Relations Act because the basketball players met the applicable legal standard of employment since they provide a service of value under the control of their college in return for consideration. Thereafter, Dartmouth College appealed that decision, and the players’ associations’ brief was filed in response to the appeal. The NCAA also filed an amicus brief last week opposing the February decision on grounds that the NLRB lacked jurisdiction to make such a determination and because the decision ignored the complexities associated with characterizing NCAA student-athletes as employees and threaten the very existence of college athletics. The NLRB is considering whether to grant Dartmouth College’s appeal.

The Players’ Brief

The players’ brief opposes the NCAA’s arguments and highlights the beneficial aspects of union representation. In particular, the brief outlines three key arguments in support of unionization:

1. The House v. NCAA settlement announcement—providing a pay-for-play model with salary caps, revenue sharing and other pro league characteristics—has eliminated any attempt by the NCAA to argue that student-athletes are still “amateurs” when student-athletes will now be paid directly by the NCAA’s member institutions in exchange for their athletic performance;
2. Collective bargaining would assist in developing a formal compensation distribution system, health and safety standards, and beneficial athletic and academic scheduling standards; and
3. The growth of professional sports leagues following the unionization of the players and how “collective bargaining in the unionized sports has resulted in highly regulated reserve systems that manage to afford players freedom of movement and access to a competitive marketplace for their services … .”

Is Unionization and Collective Bargaining Even Possible?

A decision by the NLRB that student-athletes are employees capable of unionizing could lead to more questions than answers. Many doubt whether it is even possible for the NCAA and its member institutions to collectively bargain with college athletes as a whole. Specifically, the NCAA comprises public, private and religious institutions. As a result, collective bargaining may not even be possible―despite the arguments raised in the players’ brief—because the NLRB does not have jurisdiction over public or religious institutions. An NLRB unionization decision would only affect a small number of private institutions, making comprehensive collective bargaining an unreachable goal. And if all student-athletes are not able to collectively bargain with the NCAA, it is difficult to see how any limits on compensation or player mobility would implicate federal antitrust laws.

This issue was highlighted in the amicus brief filed by the NCAA, which discussed how the NLRB has never asserted jurisdiction in a single-team case and how “it would be difficult to imagine any degree of stability in labor relations” in such circumstances. Especially in the context of team sports, asserting jurisdiction over a single team would be an “unprecedented” arrangement, as “all previous Board cases concerning professional sports involve league wide bargaining units.” And, unlike professional sports where all of the athletes are on equal footing, college athletics include different types/sizes/structures of institutions, cover hundreds of sports and involve a myriad of differences in the revenue associated with each of those specific college sports.

These differences underscore the issue of whether the NCAA can obtain an antitrust exemption. An antitrust exemption would be critical for the NCAA because it would allow the NCAA to negotiate limits on compensation and student-athlete mobility, among other enforcement efforts, that would otherwise continue to face scrutiny under the federal antitrust laws. Professional leagues that collectively bargain with players’ associations are able to enforce salary caps and free agency rules without violating federal antitrust laws. Collective bargaining could also allow the NCAA and its member institutions to implement arbitration and dispute procedures to mitigate exposure to various class actions.

Practical Implications for Student-Athletes

Being able to unionize and collectively bargain with the NCAA and member institutions seems like a slam dunk for student-athletes. The players’ brief outlines the benefits associated with forming a “players’ union”:

1. Transparency in rulemaking―the players’ union would be able to designate a group of students that would gain access to NCAA committees and drive research and initiatives for their benefit;
2. Increasing the NCAA’s and member institutions’ interest in player health and safety;
3. Negotiating specific revenue sharing and compensation rules, which would include overtime pay for athletes that are required to engage in program-related activities outside of traditional practice and game times;
4. Negotiating specific scheduling rules to prohibit certain member institutions and coaches from scheduling practices or team-related activities during times that conflict with academic responsibilities and/or that relate to increases in travel due to conference realignment;
5. Negotiating a thorough grievance procedure to replace the highly criticized and seemingly arbitrary disciplinary system that the NCAA has operated under for decades; and
6. Negotiating an NIL and college sports agent certification program for agents working with student-athletes to protect student-athletes in a similar manner to the top professional sports leagues.

There are, however, practical concerns for many student-athletes associated with classification as employees and unionization. NCAA member institutions would have to invest significantly to comply with labor and employment laws and regulations, which could lead to the shuttering of nonrevenue-generating sports, which could also implicate Title IX compliance issues. As employees, student athletes would also face increased exposure to tax issues.

What’s Next?

In addition to the NLRB decision, there are two pending bills in the U.S. House of Representatives that could mitigate these issues. The NCAA is pushing hard for Congress to take action and pass legislation that would prohibit student-athletes from being considered employees, see the “Protecting Student Athletes Economic Freedom Act,” and to provide the NCAA with an antitrust exemption, see the “Protect the Benefits for Athletes and Limit Liability (Protect the BALL) Act.” Without congressional action, the NLRB’s decision could very well result in a piecemeal, college-by-college student-athlete unionization structure, which could create a difficult compliance environment.

Schools, student-athletes and other college athletics stakeholders should tread carefully as these issues play out. They should seek experienced counsel to help them navigate this ever-changing environment.

For More Information

If you have any questions about this Alert, please contact Sean P. McConnell, Andrew John (AJ) Rudowitz, Bryan Shapiro, any of the attorneys in our Sports Group or the attorney in the firm with whom you are regularly in contact.

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