Corporate Greed, In a Different Font.
Corporate Greed, In a Different Font.
On February 4, 2024, a National Labor Relations Board (NLRB) regional office in upstate New York authorized Dartmouth College basketball players to conduct a unionization vote. On March 13, 2024, they voted 13-2 to join Service Employees International Union (SEIU) Local 560.
This is the first time college athletes have unionized, but it isn’t the first time they’ve tried. In 2015, Northwestern football players attempted to unionize, but their efforts were shut down by the NLRB, which claimed that they were not employees as protected under the National Labor Relations Act of 1935 (NLRA).
This act, signed into law by FDR, awards most of the private sector the right to strike, unionize, and exert collective action. This act also created the National Labor Relations Board, a regulatory body to administer unionization votes and a 5-member judicial body that adjudicates violations of unionization rights.
Unionization is just a formal method for a group of workers to fight their employer. Unions are a way for workers to come together and exercise their voice in their workplace. Workers utilize political pressure, strike leverage, or various other tools to bargain for higher wages, safe working conditions, healthcare coverage, or numerous other benefits.
Since the 2015 Northwestern decision, it has been decided that college athletes are not employees under the NLRA and are void of any right to a union. The momentum for college athletes began to shift in 2021 when the U.S. Supreme Court decided NCAA vs Alston (2021), which awarded them rights to their Name, Image, and Likeness (NIL). Still, they weren’t allowed to unionize.
In 2021, the Biden administration began to appoint more progressive members to the NLRB. Two years later, one of these appointees, the NLRB’s new General Counsel Jennifer Abruzzo, sent a memo to all NLRB regional offices outlining her belief that college athletes were employees protected under the NLRA and should be treated as such.
With this guidance, the Dartmouth College basketball team filed a petition to unionize in early 2024. Once it was approved, the team voted in favor of the union. The employer, Dartmouth, should correspondingly be forced to recognize their union. The NCAA and Dartmouth have not followed their legal responsibility and instead used their massive bank accounts to sue. These lawsuits are currently pending in the NLRB.
If the Dartmouth unionization is ruled legal, the school will be forced to bargain with college athletes. Also, teams across the country at different schools may begin to unionize. This is a massive threat for schools, athletic conferences, and the NCAA. College athletics are an incredibly lucrative business, Division I college sports generated more than in $15.8 billion 2019. The top ten highest-paid employees are paid an average $9.8 million.
While the NCAA and its athletic conferences are handing out tens of millions to top-tier employees, 24 percent of Division I college athletes face food insecurity and 14 percent face homelessness. These statistics are likely worse for Division III and Ivy League schools, which do not offer athletic scholarships.
Maybe, non-profit college sports leagues should work to serve not rich executives but their own college athletes who generate the revenue. Maybe more than 7 percent of revenue from football and m
en’s basketball should be paid back to athletes through scholarships. Maybe unionization will give workers the voice to make sure that possibility becomes a reality.
The NCAA does not seem to share that sentiment. In fact, like large corporations, it is willing to pay a lot to ensure that idea does not become a reality. Combined, the NCAA and its athletic conferences have spent over $15 million since 2019 on lobbying efforts to preempt court decisions with legislation banning college athletes from unionizing. This is in addition to the undisclosed amount they’ve spent on “public affairs” firms.
One of their hired guns, Brownstein Hyatt Farber & Schreck, is the same firm that lobbied for Purdue Pharma and the Sackler family during the peak of the opioid epidemic. Effectively, they are helping the NCAA do the same thing they did for Purdue Pharma: manipulate the laws and public opinion to boost their bottom line.
And, it is working. The House of Representatives Committee on Education and the Workforce voted last month to approve H.R.8534 – Protecting Student Athletes’ Economic Freedom Act, which blocks students from unionizing. Though this legislation may pass the Republican-led house, the Senate Health, Education, Labor, and Pensions committee, chaired by Senator Bernie Sanders (I-VT), will almost definitely block it from advancing through the Senate. If Republicans can take back the Senate and Presidency, it will most likely become law.
The NCAA has controlled the discourse around student-athlete unionization by painting it as something it is not. Polls show 55% of Americans oppose student-athlete unionization. So what is their argument?
The NCAA argues that employee status and unionization would strain university budgets mandating cuts to scholarships and support systems. They argue if they have to pay all athletes, presumably at least the minimum wage, then overtime, tons of sports, support systems and scholarship programs will have to be cut.
Though, the bulk of their argument is predicated on fundamental misunderstandings of labor law. The NLRB’s case and pro-union legislation for student-athletes both protect college athletes under the NLRA and only the NLRA. The NLRA is what provides them the right to unionize, collectively bargain, and strike, what the NCAA references, a minimum wage or overtime regulations is protected by the Fair Labor Standards Act (FLSA). There is no legal severe or policy argument to protect college athletes under this legislation.
College athletes may unionize and bargain for wages, but there are a multitude of other things. College athletes can bargain for guaranteed safety conditions (the rise of CTE), full and extended healthcare coverage (paying their entire life for injuries sustained in college athletes), protection from toxic environments (abusive coaches, discrimination, and sleep deprivation), hour caps on practices to manage academics, per diems for athletic trips, eliminate NIL exploitation, and a real democratic voice in their working conditions.
And basic economics shows us that teams will only bargain a price corresponding to their worth to the school. For example, the Dartmouth basketball team loses money each year. But, they are still of incredible value to the school: basketball is a cornerstone of the school, it sustains an active student life essential for alumni donations, the happiness of current students, and attracts prospective students. If the team went on strike to bargain for more scholarships or healthcare coverage, the school will only pay as much as they value the team and the controversy created by their dispersal. This chaotic balance is necessary for college athletes to get a fair deal, especially when we’re talking about billions of dollars in revenue.
For most sports, especially non-revenue, non-prominent sports, they likely only have the controversy factor. If they do decide to unionize, they will not be able to bargain for much, if any, monetary benefits. More likely, they will bargain for a democratic systemfor safe and fair working conditions.
The NCAA’s rhetorical campaign effectively manipulates the average American and even many politicians. With a critical lens, a basic understanding of labor law, and advocacy for college athletes, the NCAA’s “Protecting Student Athletes’ Economic Freedom“ rhetoric reveals itself as just a lobbyist-crafted disinformation campaign.
Suggestions for further reading:
National Labor Relations Board: NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions
National Bureau of Economic Research: Who Profits From Amateurism? Rent-Sharing in Modern College Sports
The Hope Center: Hungry to Win A First Look at Food and Housing Insecurity Among Student-Athletes
A.P. News: NCAA, leagues back $2.8 billion settlement, setting stage for current, former athletes to be paid
CBS News: Supreme Court rules for student-athletes in battle over NCAA limits on certain benefits
USA Today: NCAA, Pac-12, USC trial begins with NLRB over athletes’ employment status
College Athlete Players Association: Who We Are
Congress.gov: S.3415 – College Athlete Right to Organize Act
Forbes: March Madness Finals Ratings Set A Record High For Women, Record Low For Men