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Arguing that NLRB Regional Director Laura Sacks' decision to recognize Dartmouth College basketball players as employees under the National Labor Relations Act will have “far-reaching implications” for all “current and future” college athletes and “the NCAA membership as a whole,” the NCAA asked the NLRB on Thursday for permission to file an amicus curiae brief in support of Dartmouth.

The NLRB is currently considering whether to hear Dartmouth's appeal (technically called a petition for review). Sport As detailed, hearing an appeal by the NLRB—let alone siding with Dartmouth—is far from automatic. The panel, which currently has four members (three of whom were nominated by Democratic presidents), will only hear an appeal if there are “compelling reasons” and if either the regional director has decided a substantial factual issue that is “clearly wrong” and such error “adversely affects” rights, or a “substantial question of law or policy is raised” because the regional director’s decision departs from NLRB precedent.

Dartmouth players, who have been employed by Dartmouth since February, unionized in March and are represented by SEIU Local 560. Dartmouth has refused to bargain with the union, which has the right to negotiate over salaries, work hours, insurance, health insurance, disciplinary procedures, support services and other mandatory issues of the players' employment.

If the NLRB accepts the NCAA's 32-page amicus curiae brief, the agency's board will recognize that the NCAA, like Dartmouth, is portraying the “unprecedented” nature of college athletes as employees in a problematic light.

Although it has long been common practice for U.S. colleges to employ students—some of them form unions that negotiate with their college (for example, Dartmouth's dining hall student employees have unionized, and Dartmouth negotiates with that union)—the NCAA emphasizes that neither the NLRB, federal courts, the U.S. Supreme Court, nor Congress have ever declared “student-athletes to be employees” within the meaning of the NLRA.

The NCAA also claims that recognizing a single team as a bargaining unit would destabilize labor relations. The association stresses that NLRB cases in professional sports have involved “league-wide bargaining units” rather than a single team.

The NLRB has heard this type of argument in the past. A decade ago, the NLRB argued that recognizing Northwestern University football players as employees while still not considering players from Michigan, Ohio State, and other Big Ten schools as employees would undermine labor relations because Northwestern University is the only private college in the Big Ten and the NLRA applies only to private colleges, while employment of athletes at public colleges is governed by different state labor laws.

The NCAA acknowledges that Dartmouth's situation is structurally different than Northwestern's because the Ivy League is made up of eight schools, all of which are private. Still, the NCAA argues that the NLRB should consider Dartmouth in the broader context of Division I sports, which includes numerous public universities. The NCAA points out that Dartmouth's basketball team played against five public universities last season and that of the 68 schools that participated in the men's March Madness, 48 ​​were public.

The NCAA also outlines what could be called a parade of horrors if Dartmouth basketball players were to remain employees. That status, the NCAA says, would “marginalize the importance of educational programs” and “isolate student-athletes rather than integrate them as fundamental parts of the whole – the student body.”

Such claims are likely to be met with resistance from SEIU.

As noted above, Dartmouth employs and bargains with unionized student employees, and there is no indication that this arrangement marginalized their studies or separated them from their classmates. In fact, one dining hall employee, Cade Haskins, was able to juggle his employment in the dining hall, his studies, and his role as a forward on the basketball team. Sacks also emphasized in his conclusion that the players are employees, particularly that Dartmouth (like other DI programs) tightly controls the players, putting them in a position where sports take precedence.

The NCAA finds itself in a tricky position arguing that the employment would harm college sports as the NCAA hopes to settle three antitrust cases (House of Representatives vs. NCAA, Carter vs. NCAA And Hubbard vs. NCAA) in part by introducing a pay-for-play model. The agreement, which is not yet finalized and requires approval by U.S. District Judge Claudia Wilken, provides that colleges, like teams in a professional league, can pay athletes within the framework of a salary cap and a revenue share.

The NCAA attempts to counter the existence of this settlement by insisting that college athletes who enter into NIL agreements with schools “will have no impact on this matter even if Dartmouth's men's basketball players should receive NIL payments directly from Dartmouth at some point in the future.” A likely counterargument is that a school describing direct payments as “NIL” rather than compensation for labor might prove form rather than substance. NIL is designed to ensure that college athletes can use their privacy rights to enter into endorsement and influence deals. But because many NIL collectives are closely tied to schools, NIL has evolved (or reverse-engineered) into a payment system to recruit and retain athletes at the school—as if NIL were equivalent to a signing or retention bonus offered by the employer.

The NCAA also points out that if the NLRB finds that college athletes are employees, it will have acted outside the authority granted by Congress. Citing the U.S. Supreme Court ruling in West Virginia v. Environmental Protection Agency (2022), in which the court limited the EPA's authority to regulate greenhouse gas emissions on the grounds that Congress had not delegated that authority, the NCAA argues that important policy decisions such as whether college athletes are employees should be decided by Congress, not agencies, unless agencies can demonstrate clear congressional authority. A counterargument is that the NLRB has long determined whether employees are considered employees, and that the agency does indeed have clear expertise on the issue as authorized by federal law.

The reference to West Virginia v. EPA could foreshadow a potential legal debate if courts ultimately decide whether college athletes are employees: Does the NLRB have the authority to determine whether they are employees?

Expect many more developments on this topic in the coming months.

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