While the Board was down, the NLRB came down with an important decision granting a petition from Dartmouth's men's basketball players to form a union. The critical finding for that decision was that the players were employees despite not receiving athletic scholarships (due to an Ivy League rule that is itself the subject of a lawsuit),  The Panel held in its decision, which will be appealed, that the players received a little bit of monetary or in-kind compensation (free gear, including a show allowance, health benefits, meal and board on trips etc) as well as some important non-monetary compensation such as access to facilities, support and counseling services, and perhaps most significantly, a preferred admissions process.  They also found that Dartmouth had control over the athletes (which made them employees rather than independent contractors) because they dictated when and where they practiced and played, had mandatory alumni engagement, and other rules while traveling.  The Board also deemed the lack of profits or significant revenues to be irrelvant.

https://www.thedartmouth.com/article/2024/02/nlrb-rules-dartmouth-mens-basketball-players-are-university-employees-orders-union-election

A similar case is pending involving the University of Southern California that is probably an easier case for employee status.

The question is whether, if upheld on appeal (which is no sure thing given a loss 10 years ago in a Northwestern attempt to unionize) this could apply to DIII sports and what would be the impact.  The Dartmouth case certainly suggests it could, especially since the Ivy League looks a lot closer to a DIII athletic conference than most DI, DII, or NAIA leagues given the absence of athletic scholarships at all.  One legal expert concluded the decisions could apply to DIII schools:

https://x.com/SportsLawGuy/status/1754641974286512252?s=20

QuoteThe Dartmouth ruling is careful to explain why it wouldn't make student musicians, etc. employees (because they're not subject to the same control as athletes and don't have to ask permission to get a haircut), but it could make most college athletes employees, even in DIII

Here's one take, pre-decision, from the Athletic Director of Cal Tech, a school that is as far away from big-time athletics as you can get and one that probably doesn't get many applications or donations because of its athletics.  Moreover, it seems likely that athletics has little sway over admissions or academic classes or requirements.

https://www.on3.com/os/news/state-of-college-sports-how-would-an-employee-model-impact-college-athletics/

 

QuoteCollege sports role: Betsy Mitchell is Cal-Tech's athletic director and a former world-record holder and world champion swimmer and rower

"The only way that we continue to have sports [at Cal Tech's Division III level] is if we are exempted when those rulings come down – and that they see the differentiation is still at play. Our kids are not employees. It's about control. And when I say that, we don't have control over our kids [at Cal Tech]. They are students and young people that do what they want. We don't have anything over them. They play because they want to.

"I was a Division I athlete and I played because I wanted to, but that was 40 years ago and a whole different deal. The latest is that it will come down to issues of control. The only way forward for D3 is to differentiate ourselves and say, 'No, we're still doing it the way it was drawn up. You've got to exclude us.' Because it won't happen. What will happen is we won't have sports. We won't have sports. It will all go away. Run the math on it. I'm at a private school. But do you think public schools are going to do that? No way."

I think there are some things DIII schools could do (or already do) to avoid employee status, such as making players pay for gear or making the whole program pay for play the same as many youth club sports.  They could also end any preferred admissions process, which would probably only be meaningful in the elite academic schools of DIII.  Both moves might be things some administrators wouldn't mind doing anyway in light of funding pressures and criticism of other forms of admissions preferences after the Supreme Court's decision on affirmative action.  Schools could also reduce control in certain ways, although I think the NLRB decision is most suspect on that aspect of its decision because its attempt to distinguish sports from music or theater probably flies in the face of facts on the ground about rehearsals etc.  In theory, DIII could be the model for all non-revenue sports, thus basically eliminating the level distinctions for NCAA in terms of rules, but probably permitting them in terms of competition levels like in HS sports.

It's also possible that schools could embrace employee status and then let them unionize and bargain with them.  There are certainly some work condition-type issues that athletes already "bargain" for outside of a formal process.  Not sure schools wanted to be governed by the National Labor Relations Act, and have to hire the staff to oversee that, when doing so. 

The third possibility is that schools convert all sports to club sports and do a hybrid of the pay-to-play option in one.  They could basically help with administrative oversight of club sports like many do now, but they would have to charge players if they want to hire professional coaches or transportation to games.  They could even charge them rent for facilities, but I doubt that would happen at most schools if facilities are basically open for reservation by students as part of their student activity fees.

In any event, this is something worth watching out for in the future.

I suspect a lot of this will be dictated by the decision on all the lawsuits involving grad students trying to unionize across the country.  It's a similar argument with a lot more impact on higher education.  I doubt the athlete suit will lead the way on this.

Quote from: Ryan Scott (Hoops Fan) on February 26, 2024, 04:45:54 PMI suspect a lot of this will be dictated by the decision on all the lawsuits involving grad students trying to unionize across the country.  It's a similar argument with a lot more impact on higher education.  I doubt the athlete suit will lead the way on this.

That ship has largely sailed awhile ago.  The grad students are unionizing everywhere now and most universities are putting up white flags and are or have bargained with them.  It's too obvious that grad students working as TAs or as lab researchers are doing work for the university.

https://www.insidehighered.com/news/faculty-issues/labor-unionization/2023/09/06/grad-worker-unionization-booming-even-down-south

The athletics argument in DIII is a somewhat different case because the athletes aren't, in most cases, doing something related to the school's core mission or doing something they already pay employees to do (other than perhaps donor relations/fundraising depending upon what they are being asked to do).  There is some connection with the academic scholarship as compensation argument, though.

It's also a new issue for most DIII institutions since the large majority of them are primarily undergraduate institutions and generally do not have TAs with tuition remission or lab workers who are not already paid.

I know there are unions forming, but I don't believe there's been a legal decision in favor when the schools have fought it is there?  I know of a bunch working their way through the system, but I'm far from an expert, so I easily could have missed something.

Quote from: Ryan Scott (Hoops Fan) on February 26, 2024, 08:33:19 PMI know there are unions forming, but I don't believe there's been a legal decision in favor when the schools have fought it is there?  I know of a bunch working their way through the system, but I'm far from an expert, so I easily could have missed something.

This summer, the NLRB ruled in favor of grad students at Duke and against Duke's challenge to unionization.

https://www.wunc.org/education/2023-07-11/duke-university-graduate-students-election-unionize

Duke students actually won at the NLRB against a similar challenge in 2017, but failed to get enough votes in favor of unionizing after a bunch of ballots were challenged by the university.  Columbia grad students won the right to unionize in 2016 as well.

You may be thinking about in federal court. That's where some of these cases have been held up when a university appeals the NLRB decision, but the previous article noted that most universities are waiving the white flag and letting them go without an appeal.

Of course, a change in administration could change the makeup of the NLRB, which could affect future rulings, but we may have passed the tipping point for that. 

Back on topic, an appeal could also narrow or reverse the Dartmouth union case.  Issue is that while conservative courts tend to be less in favor of unions, they also haven't been uber friendly to the NCAA or colleges and universities lately, so it's not clear how it will come out.

The combination of unionization and the P5 eventually taking their March Madness money and running with it mean that we all better enjoy what we have while we still have it. 

"Remember when we used to complain about the NCAA making us fly to playoff games?  Those were the good old days back when we still had college sports!"

I am glad that Ron opened up a board on which we can discuss this.

I have plenty of questions about how and why it should/not apply to D-3.
How many D-3 colleges will close if athletics is not an enticement to attend?

One already sees "Tik-Tok" shorts encouraging guys to go to trade school instead of college, because they will make more money. You also read of CEO's who preferentially pay/hire non-white or female candidates.

Can we imagine what D-3 will look like in 5 years?

Quote from: Ralph Turner on February 27, 2024, 12:00:32 PMI am glad that Ron opened up a board on which we can discuss this.

I have plenty of questions about how and why it should/not apply to D-3.
How many D-3 colleges will close if athletics is not an enticement to attend?

One already sees "Tik-Tok" shorts encouraging guys to go to trade school instead of college, because they will make more money. You also read of CEO's who preferentially pay/hire non-white or female candidates.

Can we imagine what D-3 will look like in 5 years?

It's not just Tik-Tok. It's easy to denigrate that way, but there is an increasing amount of research coming out that going to college may not be the simple path to a better future that we have pushed for 50+ years. Most of that research is dependent on how much it costs to go to college, and whether you have to take significant student loans, but the body of work is definitely starting to define a point where higher education is less lucrative in the long run than trade schools or apprenticeships.

Now I'm not saying that the research doesn't show that you will, typically, make more money in the long-term the more education you get. That relationship still holds. On average a h.s. dropout makes less than a h.s. grad, a h.s. grad makes less than a community college grad, a bachelor's makes more than a 2yr degree, a master's makes more than a bachelors. On average this is still true. But the cost to attain each level of higher education, paid up front instead of invested or borrowed and paid back over a decade or more, makes those relationships much less linear than it used to be.

$75-100K borrowed from 18-22 and paid back over 10 or 20 years is a massive opportunity cost versus earning 30-60K over that same time period as you go from apprentice to journeyman. And earning 85K-100K or more as a master electrician when someone else has incurred 150K-200K in debt to get an undergrad and a masters over 6 years is going to be real hard to overcome if you decide to be a teacher or end up middle management somewhere.

Or whether the purpose of education has anything to do with money at all...

Dartmouth's basketball players voted 13-2 today to unionize

https://apnews.com/article/dartmouth-union-ncaa-basketball-players-2fd912fade62ffd81218a6dc91461962

This vote is a little misleading in the sense that the players really didn't risk (or even gain) much individually in the vote.  Dartmouth already has indicated it will appeal, which theoretically could drag this out until most, if not all, of these players have graduated.  Plus, some of the players who voted are international athletes who can't be employees under the terms of their student visas.  What they voted for was to set the ball in motion for future generations, however, and if courts uphold the NLRB's ruling that the players are employees (meeting both the compensation and control prongs of the test despite not even getting scholarships), without further clarifying and/or narrowing a test for employee status that might provide a path that differentiates certain types of college athletics programs, it could apply to D3 athletics too.
 

Dartmouth players withdraw application to NLRB to unionize

https://www.sportico.com/law/analysis/2024/dartmouth-basketball-withdraws-nlrb-petition-1234822294/

QuoteIn a move that punts the college-athlete-as-employee question to another day, the union representing Dartmouth College men's basketball players on Tuesday requested the withdrawal of its petition to the National Labor Relations Board seeking unionization for the team.

The move is designed to avoid legal and political risks associated with expected personnel changes at the NLRB following the inauguration of Donald Trump as the 47th president. Relatedly, it reflects awareness of procedural limitations for appealing an adverse agency decision on unionization to a court.

My guess is that this will be resolved legislatively at some point, but I'm guessing the players did not want to set a precedent at the NLRB that could make it easier for courts to rule against them.