College Athletes Just Got Even Closer to Becoming Employees

Amateurism in college sports isn’t dead yet, but on Monday, it took one of its most substantial steps toward the grave. A regional director for the National Labor Relations Board, which regulates private-sector labor disputes, ruled that Dartmouth University men’s basketball players are school employees and will hold a union election. The vote could come as soon as the next two or three weeks, the board’s press secretary, Kayla Blado, told me. No group of college athletes has ever been closer to formalizing the reality that instead of just playing for their school, they work for it.

The regional director’s ruling is massive but not unprecedented, or, quite yet, a victory. In 2014, football players at Northwestern University tried to gain employee status and hold a union election. A regional director ruled in their favor, too, but then the Northwestern players ran into problems in the upper levels of the NLRB’s big bureaucracy. A decisive federal five-member panel sits above the board’s regional offices, and that committee declined to call the Wildcats employees, saying that such a recognition would create a confusing regulatory patchwork between schools and “would not promote stability in labor relations.” The board impounded the ballots from their vote, and nobody found out if they wanted the union. Dartmouth has already promised an appeal to the top of the NLRB, and a resolution could easily be a year away. The Northwestern case teaches us that for college athletes to win at the NLRB, they must win a few times.

But don’t underestimate the importance of the ruling. The NCAA’s long-preferred version of amateurism has been degrading slowly for a decade, as court losses and state legislation have piled atop each other and given way to a world where athletes collect payments from third parties to suit up for their schools. The last big domino to fall is the one that either makes athletes employees of their schools themselves or devises some other system for direct revenue-sharing from institutions to athletes in major sports. What happened on Monday was the biggest move yet in that direction, and unlike the Northwestern players of the 2010s, the Dartmouth players of the 2020s have an excellent chance to win the day. A real chance now exists that the players who fire the mortal shot at amateurism won’t be football players in the Southeastern Conference or the Big Ten but will, against all odds, be some nerds at Dartmouth.

We’re living in a boom time for legal and regulatory actions against college sports’ traditional economic model. O’Bannon v. NCAA, a case decided in 2015, did away with the NCAA’s collective restrictions on what schools could give athletes to cover the cost of attendance. In 2021, the Supreme Court gave the NCAA a 9–0 rebuke in a similar case that dealt with the “education-related benefits” schools could offer. The same year, athletes started earning money for the use of their name, image, and likeness. That has since spawned an absurdist system where fans pool their money together to pay players to play for their schools, while universities that make sometimes tens of millions of dollars a year in TV money from their big sports teams stand by and watch. The Dartmouth case at the NLRB could push toward the end of this weird arrangement by establishing a direct payment relationship between schools and athletes. An ongoing court case, Johnson v. NCAA, drives in the same direction, with plaintiffs seeking a minimum wage. Meanwhile, the NLRB has another case in front of it involving USC football players. The agency’s general counsel, Jennifer Abruzzo, wrote a memorandum in 2021 that holds that certain college athletes are employees. The board’s decision-makers seem to have paid attention.

The NLRB’s decisive five-member panel could still rule against the players in their appeal. Just hearing the matter and deliberating on it will take at least several months, if the Northwestern case is any guide. That period could stretch past the presidential election and the potential return of Donald Trump to office. If he wins, he might fire Abruzzo, the pro-athlete general counsel, on his first day in office next January, as Joe Biden did to a Trump appointee during his first hours as president. Democrats have a majority on the board that would survive Trump’s possible election and is slated to last for several years. But the board members who rule on the case (ostensibly taking into account the opinions of the general counsel and regional office) could still rule against the players. Democrats had three of the five seats during the Northwestern case, too, and that did not save the players’ union drive.

But we live in a different and more anti-amateurism world now. The past decade brought a mountain of legal opinion that is skeptical of the NCAA and its schools’ position on athlete compensation. The issue has been stunningly bipartisan, as exemplified by the Supreme Court’s unanimous decision against the NCAA the last time the association appeared there. Dartmouth players will soon vote on whether they would like a union, and there’s no indication the NLRB will impound their votes in the meantime. If the players vote for a union, would a Democratic-majority NLRB roll back that and their employee status? Plus, because Dartmouth is a private school in a league of other private schools, the Northwestern-era fear of creating a mishmash of school-player relationships in one league appears to be moot.

Whatever the result, Monday’s ruling will be the subject of lengthy excerpting in the other ongoing legal fights against administrators. The NLRB’s jurisdiction doesn’t cover public schools, and those are most of the big-time players in college athletics. But a snowball effect is easy to envision, where an employee relationship at private schools (and thus schools paying players directly) leads public schools to follow suit so they can keep up in the talent market. That all of this might stem from a labor action at Dartmouth, an Ivy League school that doesn’t even have athletic scholarships—let alone anything near nationally elite teams in football or basketball—is darkly funny. To that point, the regional director’s ruling has jarred a lot of people in college sports because if basketball players at a small Ivy League college are employees, then it sure seems like athletes in a bunch of sports at a bunch of other schools are, too. “The profitability of any given business does not affect the employee status of the individuals who perform work for that business,” the ruling says. College sports leaders have long expected that power-conference football players at schools like Michigan and Alabama—where the teams earn their universities hundreds of millions of dollars—might become employees one day, but this ruling opens up a wider door: Could the field hockey players at a mid-major school be employees, too?

Maybe that’s a spooky enough prospect to spur the thing the NCAA and the big conferences have been pursuing for years: a congressional bill that exempts them from antitrust law and makes crystal clear that athletes can’t be employees. But so far, the NCAA hasn’t gotten enough takers.

Should athletes be employees? It depends, I think. The case that many of them should is laid out well in Monday’s NLRB ruling: Schools exercise immense control over their working lives, and they do a job that is crucial to their schools. Should we want athletes to be employees? It’s reasonable to go back and forth. Collective bargaining is a natural and time-tested way of getting improved outcomes for workers, and employee status would grant a path to unions for the players. (I think it’s almost a certainty that mass employee status for athletes would lead to union organizing, as several organizations swirl and try to organize players.) If athletes are employees, schools can fire them for bad play or nearly any other reason. That’s no good, though it’s also how things already work in practice—something lawmakers like Ted Cruz misunderstand.

Employee status for all college athletes may be a Pandora’s box, though. Private equity investors have their eye on the industry; if the whole track team is made of employees, would the money men institute mass layoffs because they aren’t generating returns? It’s not a ridiculous concept to fret over. Another real fear, one that appears likely to be realized on the Dartmouth basketball team, is that making college athletes into employees will wreak havoc on the visa status of international players. A future like that may not be tenable, but a present where college sports lies about the relationship between athlete and institution definitely isn’t. The hoopers at Dartmouth are on the verge of making the obvious official.