The last couple of weeks might lead you to believe the odds of college athletes gaining recognition as employees of their schools, conference and the NCAA have taken a big hit.
On Dec. 31, 2024, the union representing Dartmouth College men’s basketball players withdrew their petition to the National Labor Relations Board. Last Friday the National College Players Association dropped their unfair labor practice charge regarding USC football and men’s and women’s basketball players.
Meanwhile, President-elect Donald Trump is set to replace NLRB general counsel Jennifer Abruzzo, who has played a historic role in advocating for college athletes as employees. In an often-cited memorandum, Abruzzo argued that D-1 college athletes are employees within the meaning of the National Labor Relations Act and have been misclassified as student-athletes.
It might seem the drive for college athlete employment recognition has come and gone.
Think again.
The Dartmouth and NCPA moves weren’t based on the legal merits of college athletes as employees. They instead reflected political and procedural realities, namely that the NLRB will see a new board configuration and a new presidential administration.
As explained more fully here, the Service Employees International Union, Local 560 dropped the Dartmouth players’ petition for tactical reasons consistent with union withdrawals for other labor matters.
Last month, the U.S. Senate declined to advance the nomination of then-NLRB chair Lauren McFerran, who was viewed as supportive of the Dartmouth players. Trump will now nominate two members to the agency’s board, giving the Republicans a 3-2 majority. Persons connected to the Dartmouth players’ effort believe the risk of the players losing at the board level would rise with a Republican majority. Dartmouth players weren’t the only ones with a stake in their case. The board sets precedent, meaning a loss for the Dartmouth players would have hurt organizing efforts at other colleges.
A related worry was the uncertain prospects of establishing a right to appeal to a federal appeals court if the NLRB rejected the SEIU as the players’ union. Unions are generally unable to appeal NLRB representation decisions to courts. Although raising an appeal based on a related unfair labor practice charge might have been a possible avenue for the Dartmouth players—language in the NLRA and the Administrative Procedure Act suggest it could work—the safest maneuver was to avoid the risk of inviting adverse precedent.
As to the NCPA, its leader, Ramogi Huma, indicated the move reflected increased opportunities for college athlete compensation outside of the employment model. Most significantly, if U.S. District Judge Claudia Wilken approves the NCAA’s settlement to resolve the House, Carter and Hubbard antitrust litigations, D-1 athletes at participating colleges will be paid for media rights, ticket sales sponsorships and NIL.
The two moves, in short, were not about the NCAA, Dartmouth College, USC and the Pac-12 winning. In fact, both the Dartmouth and NCPA matters had momentum.
Last February, NLRB regional director Laura Sacks held that the Dartmouth players were employees within the meaning of the NLRA because the players perform work in exchange for compensation (including preferred admissions into an elite university, per diem, clothing, sneakers, etc.) and the school has the right to control that work. The decision remains as citable, persuasive authority and has not been reversed or vacated.
“The legal arguments and legal foundation for the finding that the Dartmouth varsity players were employees is solid, strong and historical,” the Dartmouth players’ and SEIU Local 560 attorney Jake Krupski told Sportico in a phone interview. “The bottom line is the foundation of the reason to not have them recognized as employees has been exposed as untrue and defying common sense. As Justice Kavanaugh put it in NCAA v. Alston, you can’t make a circular argument to justify exploitation. You can’t say, ‘we can’t pay them because they won’t be amateurs, and we can’t pay them because they’re amateurs.’ It doesn’t make any sense.”
As to the NCPA matter, Abruzzo and NLRB Los Angeles regional director Mori Rubin reasoned USC athletes were employees because of the services they rendered in exchange for compensation while being controlled by their school, the Pac-12 and NCAA. Administrative law judge Eleanor Laws was weighing that position and related arguments, including that the term “employee” is intended to be interpreted broadly absent an enumerated exception (none of which pertains to college athletes).
Along those lines, colleges, conferences and the NCAA using the “student-athlete” moniker to classify athletes as non-employees is not a legal test and is not determinative. Instead, the basic test for employment is whether a worker performs services for another and is subject to that other’s control or right of control. Another factor is whether there is tangible compensation for those services. Like other D-1 schools, USC controls players’ work hours through setting requirements on practices, training sessions, mealtimes and travel in ways that appear to distinguish those players from their classmates. USC’s control over athletes’ ability to conduct interviews and express viewpoints on social media also sparked debate.
A related issue is that some college athletes turn to paid jobs–in addition to spending more than 40 hours per work on athletic-related activities and juggling a full course load–for money. Krupski stressed this point. A system that denies college athlete employment, he argued, “hurts the athletes’ academics and social experiences because a lot of them are working extra jobs on the side to make ends meet.”
Whether college athletes are employees is not a new legal battle. Although they occurred before the recent rise of commercialization in college sports and before the U.S. Supreme Court held in Alston (2021) that the NCAA isn’t owed deferential status (under antitrust law) in setting rules that limit athletes’ economic opportunities, the U.S. Court of Appeals for the Ninth Circuit (Dawson v. NCAA, 2019) and the Seventh Circuit (Berger v. NCAA, 2016) rejected the recognition of college athletes as employees. Those courts opined college athletes aren’t employees because they lack an expectation of income and their primary relationship to their schools is academic.
Still, persons familiar with athlete organizing efforts indicate that if McFerran, who lost a 50-49 vote in the Senate, had won the vote, Dartmouth players and the NCPA would likely have continued their efforts—even with Trump winning the presidential election. In that scenario, the agency’s board would have maintained a 3-2 Democratic majority. The larger point:
The substance of the employment argument hasn’t become less persuasive because of political outcomes.
There are other NLRB matters that warrant mention. The College Basketball Players Association (CBPA), an advocacy group led by former University of Minnesota regent Michael Hsu, has filed unfair labor practice charges against Notre Dame, Northwestern, Dartmouth, the NCAA and the Ivy League. The CBPA argues D-1 college athletes are employees within the meaning of the NLRA. The fact that the CBPA and Hsu aren’t connected to those athletic programs or to the NCAA or Ivy League is not determinative; there is no standing requirement to file such a charge as any person may do so if they allege an unfair labor practice affecting commerce.
In a phone interview with Sportico, Hsu said his group is weighing options in the wake of the withdrawals by the Dartmouth players and NCPA. Hsu and his colleagues are aware of, and are considering, the political realities and strategic reasons behind those moves. He acknowledged the CBPA might withdraw their petitions in the coming days for the same rationale.
But Hsu stressed that no matter the procedural posture of NLRB efforts to recognize college athletes as employees, the merits of the legal argument have only become more persuasive as college sports has become increasingly commercialized.
“I’m more convinced than ever that D-1 college athletes are employees within the meaning of the NLRA,” Hsu said. “There is no debate they’re generating billions of dollars for the industry or that they’re under the control of their schools, conference and the NCAA. Whether their recognition as employees happens through the NLRB, at the state level or through litigation remains to be seen but it will happen.”
Hsu’s reference to litigation is a nod to Johnson v. NCAA, which is advancing in the players’ favor. The player-plaintiffs maintain they’re employees of their schools and the NCAA within the meaning of the Fair Labor Standards Act (FLSA) and similar state laws that guarantee the right to minimum wage and, if applicable, overtime pay. The players’ FLSA claims are not about forming a union as the FLSA doesn’t provide that right. Instead, they’re about treating college athletes at least as well as their work-study classmates, some of whom are on scholarships and are paid to work at games (such as in concessions or at the ticket counter) played by the athletes.
In July, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of the NCAA’s motion to dismiss the case, which has returned to a federal district in Pennsylvania. Notably, the Third Circuit stressed that college athletes can be employees and athletes at the same time.
Johnson will take time to play out but has so far enjoyed success and, unlike NLRB petitions, isn’t vulnerable to political changes.
There’s another way college athletes could be classified as employees: recognition by a state.
States are famously known as the “laboratories of democracies” because they can innovate in ways that are harder to accomplish at the federal level. This has been apparent with name, image and likeness. While Congress pondered the topic, states acted by adopting NIL statutes forcing the NCAA to let college athletes use their right of publicity without running afoul of eligibility rules. A state that uses the lawmaking process to recognize at least some college athletes as employees is plausible, especially with the NLRB avenue likely shut off for the next four or more years.
The state level could also feature organizing efforts by athletes at D-1 public universities. While the NLRA governs the possibility of athlete employment at private universities (such as Dartmouth or USC), state labor laws govern that possibility for athletes at public universities. Those laws vary widely across the 50 states and in some states college athletes at public universities gaining employment or unionizing appear virtually impossible. But in other states, particularly those with labor-friendly laws, there may be lanes for athletes to pursue employment and organize.
One irony to the NCAA, conferences and colleges fighting athlete employment is that employment would give them control over the athletes at a time when coaches are losing top players to the transfer portal and NIL collectives seem to have seized power. An employment contract could bind an athlete to a school so they can’t transfer. If players unionized and engaged in collective bargaining with a school, conference or the NCAA, resulting workplace rules would be exempt from antitrust scrutiny, meaning no more antitrust lawsuits.
That world seems a lot more stable than the one college sports is currently experiencing, where the real winners are the attorneys. They’re amassing small fortunes through billable hours or acquiring true fortunes by netting a half billion dollars in class action settlement shares. Not all D-1 college athletes would have to be deemed employees, either, as my co-authors explained in a recent law review article.
If the NCAA gets its way, Congress will pass, and Trump will sign into law, legislation declaring that college athletes aren’t employees. The odds of that happening appear slim, especially with Congress so divided. Even if it were to happen, that type of statute would face constitutional challenges. Treating college students, who can also be employees of their school through work study, better than college athletes invites an equal protection lawsuit. Whether employment classification ought to belong to the states is also fertile ground for litigation.
To those points, attorney Paul McDonald, who is co-counsel for the players in Johnson, recently penned an op-ed in the Atlanta Journal-Constitution in which he warned of the legal challenge.
“For Congress, denying college athletes the same student employee status as students selling popcorn at games should be a nonstarter,” McDonald wrote. He argued such a statute would be “contradicted by decades of work-study-style programs” and would “violate equal protection under the Constitution, which prohibits the government from treating students differently in this manner.”
You still think the topic of college athletes as employees is over?
