The biggest U.S. pro sports unions are backing a push to classify college athletes as employees, according to an amicus brief filed Friday with the National Labor Relations Board. The sports council of the AFL-CIO, along with the NBPA and NHLPA, say the NCAA has “given up the ghost” of amateurism by offering a cash settlement and that unions should lead college athletes.
The council represents the NFLPA, MLBPA, WNBA, NWSLPA, MLSPA and other associations who are throwing their weight behind the 15 Big Green players. In February, NLRB regional director Laura Sacks found those players were employees within the meaning of the National Labor Relations Act. A month later they voted 13-2 to unionize with the SEIU Local 560.
The 30-page brief makes a bevy of claims in support of the Dartmouth College basketball union push, saying union representation should be the norm as money pours into college sports—this time, towards the athletes.
The NLRB is considering whether to grant Dartmouth College’s request to review Sacks’ order. Sacks found the Big Green players met the applicable legal standard of employment since they provide a service of value under the control of their college in return for consideration.
On Thursday, the NCAA filed an amicus brief claiming that Dartmouth players gaining employment status and unionizing will destabilize college sports, undermine education and “threaten the very existence” of some athletics programs.
The pro players’ unions sharply disagree and lay out three key arguments.
First, they stress college sports has become an enormous business that prioritizes making money and financially enriches numerous stakeholders, but not the labor. The unions cite a bevy of data points, such as multibillion dollar TV deals and revenues jumping hundreds of percent over several years, to show how college sports would be the second largest pro league in the world after the NFL.
The unions stress that conferences no longer seem to care about established rivalries or the negative impact of lengthy travel on students’ academic studies. Instead, the driving force is maximizing “ever growing media contracts.”
The unions highlight how the Big Ten, which used to consist of Upper Midwest schools, now goes from Seattle to New Jersey while the “similarly anachronistically named Atlantic Coast Conference” extends from the Bay Area to Miami. Conferences and member schools, the brief asserts, are simply engaged in a “naked cash grab” that doesn’t care about higher education goals or students’ learning. It’s all about business and money.
Likewise, the unions contend the NCAA has waived the white flag on romanticized depictions of college sports. The NCAA intends to settle three antitrust cases (House v. NCAA, Carter v. NCAA and Hubbard v. NCAA) by adopting a pay-for-play model with salary caps, revenue-sharing and other pro league characteristics. Under the settlement’s current iteration, schools would share up to 22% of sports revenue stemming from media rights, ticket sales and sponsorships and participating schools would be held to a $21.6 million salary cap in paying the players. “Athletes like the Dartmouth basketball players,” the brief charges, “are not amateurs” when they, like other D1 athletes, could be paid to play sports.
The proposed settlement draws considerable attention in the brief. The unions contend it corroborates U.S. Supreme Court Justice Brett Kavanaugh’s concurring opinion in NCAA v. Alston (2021). Kavanaugh bluntly wrote about college athletes generating “billions of dollars in revenue for colleges for every year” and how ““[n]owhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”
In that same vein, the unions say the NCAA and power conferences saw “the writing on the wall” when agreeing to direct pay.
“While the House settlement still requires court approval,” the unions write, “the NCAA and its member schools have forever conceded that, in order for colleges to continue reaping billions from college sports, college athletes must be compensated for their work.” Mentioning that unions represent food service workers, janitors, broadcast crews, hotel workers and other occupations connected to sports, the unions that college players must “have a say” in “who gets paid and how much.”
Second, the unions insist that because their college counterparts are performing the same basic “work,” it “should be no surprise” that Dartmouth players want to bargain over employment issues.
The unions argue a bargaining relationship makes sense since, with colleges directly paying athletes going forward, questions regarding “what form of compensation, how much, and for whom” have become paramount. They add that compensation is not new in college sports. College athletes already receive game tickets, equipment, apparel and other items of value. They’ll soon be paid money, too.
Health and safety, the unions write, should also be bargained since “sport is a one hundred percent injury occupation.” They stress how pro athletes have bargained for inclusion on joint committees to study player health and safety.
Scheduling is also highlighted as a value of bargaining. While the NCAA suggests employment bargaining would undermine academics, the pro players’ unions argue the opposite is true.
“Personal scheduling issues are particularly important to college basketball players,” the brief contends, “given the demanding time pressures of Division I basketball, which players must balance with academic responsibilities.” A union for college players could likewise bargain for language to prohibit coaches from “exerting indirect pressure requiring team activities during time that is supposed to be the athlete’s own.” Athletes, in other words, could use collective bargaining to protect their studies from their coaches.
Third, the unions assert that fears of employment and unions destroying college sports run counter to the role played by unions in pro sports. By bargaining terms of employment with unions, pro leagues and owners gain an exemption from antitrust scrutiny—which has dramatically reduced legal controversies in leagues and promoted labor stability valued by fans and business partners.
To that point, the unions write that pro leagues have ballooned in value while owners and players have bargained terms of employment. “The NFL, MLB, and NBA are the three most valuable sports leagues in the world,” the unions note, while adding “From 2009-2023, the North American sports market—comprised of gate receipts, sponsorship, media rights, and merchandising—grew from $48.7 billion to $83.1 billion.”
The unions also point out that when Curt Flood and other key figures in the sports labor movement pushed for free agency and athletes’ rights, some industry insiders predicted doom and gloom. They quote former Los Angeles Dodgers manager Walter Alston saying if a player “is declared a free agent, baseball is dead.” Former MLB commissioner Bowie Kuhn is also mentioned as (wrongly) predicting free agency could lead to some teams folding. The unions note that fandom increased, not decreased, and owners became even richer as franchise values soared.
The unions see employment and unionization in college sports as a cure to what many regard as a chaotic and unregulated landscape.
“Whereas university officials from the Ivy League and other leagues regularly lament the ‘wild west’ nature of player movement from team to team under the NCAA’s transfer portal,” the unions observe, “collective bargaining in the unionized sports has resulted in highly regulated reserve systems that manage to afford players freedom of movement and access to a competitive marketplace for their services, but only after the expiration of a specifically negotiated ‘reserve period’ during which teams hold the exclusive right to a player’s services.”
While Dartmouth basketball might not be a feeder for the pros, NBA and other leagues’ players have joined hands behind the Big Green. Their brief is also a shot across the bow on Capitol Hill. While Congress is considering a bill to ban college athlete employment, it’s clear that organized labor and influential sports unions will warn them to think long and hard before they vote.