March Madness & April Sanity
How the NLRB decision on Dartmouth Men's Basketball union upholds university bosses' right to exploit everywhere else & opportunities for labor to punch back creatively
It’s April. The throes of March Madness have passed, the Final Four is set,1 and I have fully succumbed to insanity. Between pain pills, work from home, and having to lay on my couch with my leg propped up for 10+ hours while blood and surgery juices2 pool atop my “new” grafted ACL I’ve watched far too much basketball to make up for not being able to play anymore. In a few short weeks of the single elimination tournament, America has fallen in love with another unathletic White guy who banks threes, another double digit seeded Ivy League School (Yale) upset a dark horse contender (Auburn), a Big Boy on an underdog team has warmed our hearts by sticking his tongue out and flexing with his dad, and there have been a surprisingly lack of upsets among the true “contenders” at the top of the bracket.3
Whether I’ll be able to run and jump again—and if DJ Burns Jr. and NC State can slow the roll of Purdue’s Zach Edey and UCCON’s Donovan Clingan— will remain to be seen. But with the heightened national attention on college athletics during this tournament, discussion of the shifting labor landscape for the student-workers4 has begun as well. This has mostly focused on the newly institutionalized pay-to-play model Name-Image-Likeness (NIL). A regime that allows for advertisers and old school bag guys (College Sports Boosters) to make semi-above board “non-profits” that funnel money legitimately, if opaquely, into the hands of the athletes.
As athletes finally saw a trickle-down, booster-approved piece of the pie, March Madness truly kicked off with the historic union election when the Dartmouth Men’s Basketball team voted to unionize with SEIU Local 560.5 After an unsuccessful challenge delayed the vote, the small elite Private Ivy league school in New Hampshire is the first college sports team to win an National Labor Relations Board (NLRB) election (with an overwhelming 13-2 victory.) No other college sports team’s attempt to unionize has even resulted in an NLRB vote. The election win was certified on March 14, and the Dartmouth Board of Trustees were ordered to bargain with the union without further delay.
This left many questioning why the NCAA, who has historically gone super hard against the classification of student-athletes as employees as to avoid the school administrations’ monopoly on media rights, seemingly didn’t fight this further. Does this have the potential for a widespread union wave? Why did it happen at a small elite private college that doesn’t even offer athletic scholarships? And is this an unequivocal win for “Progressives” and labor, thanks to our “MoSt PrO-UnIoN PrEsIdEnT oF aLL TiME!”
However, for those looking for a unionization surge in college sports, the compromises made by the NLRB in the Dartmouth case do not open the door for unionization efforts through NLRB elections.
Why An Elite Private University? Emphasis on Private
As usual with overly complicated legal wins, the devil is in the details. Since the National Labor Relations Act only covers private employers, and the majority of major college sports teams are public universities, they are not covered under collective bargaining by the NLRB. Instead, collective bargaining on a school-by-school basis would need to happen through the public employee relations board, which is different from state to state (often in “red” states it is outright banned). The reason why the National Labor Relations Board decided to let Dartmouth Men’s Basketball unionize (while not allowing other colleges who have tried before) came down to two main factors:
1. Is the school a private institution (not a public university)?6
2. If it is a private university, are the other universities in their athletic conference public?
This second factor is the more tricky and insidious tool the state uses to block players from their rights to union representation, which all other school employees are guaranteed. Effectively the NLRB stated that a player is only considered an employee in their eyes if they are at a private university and that private university doesn’t compete with public universities. This ruling comes on the back of a ruling by Obama’s NLRB in the previous unionizing effort amongst the Northwestern University Football team. Northwestern players petitioned for an election in 2015, only to have it denied before the votes could be counted. Like Dartmouth, Northwestern is an old money, elite private college, but it plays in the more competitive athletic conference of the Big 10, the only private university7 among large state schools. With college football the main economic driver of college athletics and their media rights deals, and 108 out of 125 Division 1 (FBS) teams being from public universities, this all but eliminates the possibility for NLRB-style unionization for the sport (Outside of Notre Dame, which does not have a football conference).8 The NLRB decided because they would only oversee labor relations at one school, and all the other universities are under different labor regimes, they “could not promote labor peace” and thus did not grant players the right to union representation and collective bargaining. However, the NLRB did leave a window open for the small, less monetarily significant conferences (representing small private universities) to unionize in basketball.9
“When the case came before the Board, the Board explicitly did not decide whether the football players were employees. Instead, the Board determined that, even if the scholarship players were statutory employees, it would not effectuate the policies of the Act to assert jurisdiction. In deciding that it should decline to assert jurisdiction, the Board noted that previous cases involving professional sports involved league-wide bargaining units, whereas the petitioned-for unit included only the Northwestern football players. The Board further observed that of the approximately 125 colleges and universities that participated in Football Bowl Subdivision (FBS) football, all but 17 were state-run institutions over which the Board could not assert jurisdiction. Further, Northwestern was the only private school which competed in the Big Ten Conference. The Board stated that in such a situation, asserting jurisdiction would not promote stability in labor relations due to the variety of state labor laws that would apply to football teams at state-run institutions.
Although the Board in Northwestern University declined to exercise jurisdiction over the players at that university, nothing in that decision precludes the finding that players at private colleges and universities are employees under the Act. The Board heavily emphasized that its decision applied only to football players at Northwestern University. The Board further emphasized that it did not reach the matter of whether team-by-team organizing is never appropriate and did not find that it would never assert jurisdiction over a single-team unit” NLRB Case 01-RC-325633 (Dartmouth Board of Trustees v. SEIU Local 560; February 5, 2023)
While liberal labor leaders try to cheerlead this decision as a win for workers, the NLRB’s decision to “promote labor peace” sells out the vast majority of student athletes’ rights to union representation. It upholds the farce that these massive universities act like “public entities” despite taking in billions of dollars in television revenue just for athletics, owning some of the most valuable real estate in the country in the form of stadiums, and hiring coaches and administrators that are universally the top paid public employees10 in each state several times over. The so-called “progressive Biden NLRB” also handed over the legal framework to Public Employee Relations Boards (the states’ equivalent structure to the NLRB) to make a similar ruling to deny union representation. They can now make the excuse that, since they cannot control the other schools in other states, giving UCLA student-athletes a union could negatively affect “labor stability” in Oregon and Washington.
Organizing Outside Established Labor Relations Regime
“[Declaration of purpose and policy] It is the policy of the United States that-- (a) sound and stable industrial peace and the advancement of the general welfare, health, and safety of the Nation” - National Labor Relations Act
From a working class labor perspective, it is important to understand the NLRB as an explicitly counter-mobilization institution of the United States government. That is not to say that it cannot yield concessions for working people in the form of workplace improvements, raises, and an accountability process for management’s wrong doings. But its goal in doing so is to “maintain labor peace and stability” first and foremost.11 That means the institution will side with maintaining whatever pro-business status quo exists so long as it will not create disruptions to the economy in the form of strikes, walk-outs, or other worker actions that have a cascading effect on other industries. Allowing the men’s basketball team from a small Ivy League school on the periphery of the sports media landscape is a minor concession, allowed in exchange for blocking the framework for collective bargaining amongst the bigger money makers.
Any sort of wider unionization effort in college sports would have to be outside of the NLRB board rooms and Zoom meetings, focusing more on direct industrial actions and political pressure across states, conferences, and teams competing against one another. The players, without a strong existing national organization stepping in12 to help, are left on their own with a short time clock (four to five years in college) and the high likelihood of retaliation from coaches and the administration for speaking out. That’s along with their roster of a full time sports job plus school course work. The reality remains that the overwhelming majority of college athletes will not “go pro” and will not see any compensation for the wealth they create on the field without widespread action. Whether political leadership arises from former players, other traditional unions on campus, or the growing grad student union movement, it will require the risk of having to rely on direct action and direct bargaining against some of the most hostile pro-exploitation and anti-regulation forces in the country (Media Networkers and old Southern capitalists that love their petty fiefdoms over their college towns). However, with the massive increase in profits for the sport, continued expansion of playoffs (i.e. more unpaid games for players at risk of injury), and some amount of player empowerment through NIL, there is too much money on the table to see the system running without interruption forever despite the NLRB’s best efforts.
Organizing NIL Collectives as a possible Inflection Point
With the introduction of Name-Image-Likeness payouts, but status quo with regards to non-employee status from federal and state governments, the system is much like a newly restructured knee after surgery. That is: unstable and susceptible to arthritis down the line. While this newly grafted ACL tendon may have seemingly been a patchwork job at saving things, it is still weak and presents a new unstable inflection point. NIL is essentially a patchwork system of amateurish nonprofits, unique to each given school, that are the legitimization of past projects from “wealthy school boosters.”
Previously, these people might have handed a players’ parents a briefcase full of cash and the keys to an SUV in a used car dealership while miming a zipper on their lips. Now they hand them the cash and keys in exchange for a monthly “advertisement” or appearance at a donor event for “charity.” On paper, these entirely private nonprofits—not the state institutions13— are the employers paying the players. This super unregulated, opaque dark money, leads to high levels of inequality among which players get paid what. In professional sports, agents that negotiate contracts must be certified through the players’ unions, but in the age of NIL, any grifter can go into a college and promise the moon to get an 18 year old to sign a predatory deal.
Since the system is obfuscated by design, it’s unlikely to be used to extract leverage for workers.14 However, it does open up an avenue for using the traditional NLRB election style bargaining that existing unions are more familiar with. These are new wild west institutions in the nonprofit world, and they need regulation. Theoretically, players under the same NIL collective could petition for an NLRB election with these private employers. It would be very difficult to make a case that the players are not the nonprofit's employees, and they do not have the veil of public employer status or interstate media rights deal across conferences.
College sports are perhaps the most exploitative institution left in the American entertainment industry, based purely on wealth created vs player cut of the pie. The barriers the legal system has created for players are significant. Those that wish to uphold the massive profits are vicious and antagonistic, but not unbeatable. Organizing is going to have to look very different before an institution like the NLRB will stop building walls to protect gold while doling out pennies. While some may feel disappointed that the historic win of Dartmouth Men’s Basketball players is not a replicable model for the majority of the industry, we as a labor movement should be ready to mobilize in opposition to the boss’ monopoly on power. That means being creative—thinking outside the Box-And-One—drawing up a new play.
UCONN (1), Purdue (1), Alabama (4), NC State (11).
The medical term.
For the first time in five years the top 8 seeds all made it to the Sweet Sixteen™.
Often euphemistically referred to as “student-athletes.”
The union who represents most other non-faculty workers at Dartmouth.
The NLRA/NLRB only covers the private employment labor regime (excluding agricultural and railroad workers). Public sector workers (i.e. state universities) are all covered on a state by state, sometimes municipality by municipality basis.
Next year USC will join the Big 10 making it so the conference will have 2 private colleges (still only one being an elite academic school).
Notre Dame has a media rights deal exclusively with NBC, separate from the typical conglomerate deal made by conference (10-16ish school collectives).
Ivy League started, but possibly the West Coast Conference, CAA, or MAAC could possibly be deemed eligible.
And pension earners.
A vast oversimplification of US Labor History would put it as, in the early third of the 20th century workers and employers didn’t have labor relations, workers went on massive disruptive strikes, occupied their workplaces, sometimes entire cities went on strike in support of each other, in response employers fired, harassed, and even killed “rabble rousing worker.” While the US government has never been on the workers' side of things necessarily, these types of disruptions in one city were bad for business in another too, thus a system to encourage compromise was created.
*cough* Professional Players Associations. College sports are essentially a much more popular and essentially free minor league system for the “professional” game, start organizing it as such.
On paper the NIL collectives cannot pay anyone for playing their sport, they obviously are in direct coordination with the schools and coaching staffs while thinly veiling it as a philanthropic job for players outside of their sport.
The system is set up to be non-transparent and highly competitive where players are bidding against each other for limited non-disclosed amounts of funds. It is essentially the unregulated free market run by boosters keeping the exact deals and amounts secret so as not to upset teammates by just how each person is determined to be paid where as professional sports have pay scales for position/skill level/length in the league and salary caps to pretty much determine how money could be doled out transparently and more fairly.