Robert McRae III has seen a lot. His grandmother, a Los Angeles civil rights activist, often took him to rallies she organized and picket lines she walked. He recalls with a smile that he may not have been old enough to attend a gay pride parade with giant anatomical balloons.
As a basketball player at Dartmouth College, he has played in NBA arenas and iconic venues such as Duke University's Cameron Indoor Stadium and Philadelphia's Palestra.
But earlier this month, McRae's eyes got even wider. A photographer snapped a photo of him and his teammates walking together to vote to become the first college athletes to unionize. Hours later, after the team's final game of the season, he was surrounded by a small group of reporters asking questions about labor and employment.
“There's a little surprise,” McRae said of the attention.
Unionization votes are playing out on both coasts, as some of the most serious challenges to the amateur model of college sports are taking place in an unusual venue: the National Labor Relations Board, a federal agency. This is just the beginning of a battle of eight. Has jurisdiction over private employers.
Dartmouth College will vigorously contest the ruling that allows its men's basketball players to be recognized as employees “even if it means going to court,” a school spokesperson said in an email. The university recently hired the same law firm that represents USC, as well as SpaceX, Trader Joe's and Amazon, which the board claims are unconstitutional.
As for the University of Southern California, a hearing in Los Angeles to determine whether football players and men's and women's basketball players should be considered employees is scheduled to conclude in April.
The lawsuits are part of a broader dispute over whether athletes should directly receive a portion of the more than $17 billion in revenue that NCAA Division I athletics will generate in 2022. These funds do not include payments from the sports world to athletes for so-called name, image and likeness rights. Funds from brands, sponsors, or booster-driven organizations are most often directed to soccer and men's basketball players as recruiting incentives.
The biggest cash cow will be the upcoming men's and women's basketball tournaments, which will draw hundreds of athletes to the national spotlight and whose moniker “March Madness” has been trademarked and monetized by the NCAA.
The revenue-sharing fight is also at the forefront of organized labor's fight for worker rights, which spilled over to the Capitol last Tuesday.
Former NLRB Chairman Mark Gaston Pierce testified that “we need the ability to enjoy these benefits equally, or at least significantly.” Otherwise, we will end up in slavery. ”
But university administrators say only the wealthiest schools can afford to pay their athletes as employees, and that if forced to do so, they would It said it would be forced to cancel the Olympic sports program and that the costs would be offset by: The major revenue generating sports are soccer and men's basketball.
Republican Rep. Bob Good of Virginia, former head of athletics at Liberty University, who chaired the hearing, scolded Pierce for bringing race into the hearing, calling it “shameful.” He concluded. “It's a myth that student-athletes are exploited,” Good said.
Cade Haskins, the Dartmouth basketball player who has led the team's organizing efforts, might have something to say about that. But he said he was not invited to the witness panel, which included athletic directors, employment lawyers, law professors and Pierce.
But Mr. Good's claim begs a pertinent question: Which athlete is he referring to? More than 500,000 of his NCAA athletes play sports from football to Frisbee at his more than 1,100 schools, from Ohio State to Oberlin.
In the Dartmouth and University of Southern California lawsuits, lawyers for both sides describe football and basketball players as high school students, professional athletes, marching band drummers, graduate student teachers, cafeteria workers, cheerleaders, hot dog vendors, and ticket takers. compared with.
Opposing lawyers were keen to point out their reasons for not applying.
“Finding compensation is hard. That's what the law likes,” said Matt Boddy, a University of Minnesota law professor and former NLRB field attorney.
There are also differences between the players from both schools. USC athletes can receive nearly $100,000 in scholarships annually, but Dartmouth, like other Ivy League schools, does not award athletic scholarships and only provides need-based aid. Approximately half of the scholarship remains. The basketball team works during the school year to help pay for school.
Another difference: All eight Ivy League schools are private. In other words, what applies to Dartmouth also applies to the rest of the schools in the league. However, in USC's lawsuit, the Pac-12 Conference and NCAA are being charged as co-defendants to show that they are asserting control over USC's athletes, along with all other athletes under their protection. Ta. The challenge could become even more difficult after a federal judge recently struck down an NLRB rule that would have expanded coverage when companies are joint employers.
Next is the issue of money. USC's branded football program generated $187 million in athletic department revenue last year, while Dartmouth's basketball program operated at an $855,000 loss last season, according to testimony at the hearing.
“The USC case is a more traditional case,” Boddy said. “Dartmouth is a little surprising. The economic relationships there are a little hard to see. If basketball players are employees, why aren't the orchestras employees? Why aren't the people on the squash team?”
Because of this, some legal experts believe the board will rule on the USC case first, or at least take it into consideration when deciding on the Dartmouth case.
Since Jennifer Abruzzo, who was appointed by President Biden to lead the NLRB, released a memo in September 2021 stating that certain college athletes should be considered employees under the National Labor Relations Act. These lawsuits were considered inevitable.
The board, which is the final arbiter of cases, is made up of five members (currently three Democrats and one Republican, with one vacant seat) and appointed by the president. The same goes for legal advisors. If Donald Trump wins the November presidential election, a new majority of the board of directors and general counsel will be installed.
Perhaps this explains the fact that USC is proceeding with its case with a long list of witnesses. Among them was the school's band director, who spent more than three hours testifying in detail about how the program operates and how band members wear uniforms before games. As a soccer player.
“It's impossible to talk about labor law apart from politics,” said Wilma B. Liebman, who was appointed chair of the NLRB by President Obama and served on the board under Presidents Clinton and George W. Bush. Told.
This can lead to policy whiplash. When Ms. Liebman first joined the board, a lawsuit involving New York University ruled that graduate students were employees. When Bush became president, the board overturned that decision in a lawsuit involving Brown University graduate students. The board reversed course again under the Obama administration in a lawsuit involving Columbia University graduate students.
A few years after Mr. Liebman left, the board took up a lawsuit over whether Northwestern's football players were employees. After the regional director of the case agreed that the players were employees, the board declined to assert jurisdiction in 2015 and the case died when the team's seizure slip was thrown out. .
Marshall B. Babson, a labor lawyer who was appointed to the NLRB by President Reagan and now represents management, questioned whether collective bargaining would work in academia.
He called the ruling that basketball shoes (six pairs valued at $200 each) count as compensation “ridiculous,” and said a basketball player who failed a Mesopotamian art exam would not be able to claim that his performance was influenced by the union. I wondered if I could be sued for unfair labor practices even if I had received a refund. Activities.
“Does the board want to pretend to be the head of the art history department?” Babson said.
Others suggested a broader view.
Liebman said the Dartmouth and USC cases are “part of this larger labor movement, a growing discontent that has been brewing over the past decade, especially among young workers.” It's all one piece. ”
Furthermore, she added: “This activity and uproar over the years since Northwestern has been building momentum to address human rights abuses within the system. It will happen.”
