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How a Dartmouth team's decision to unionize could impact college sports

Members of the Dartmouth College men’s basketball team earlier this week voted to unionize. It’s the first time college student-athletes have taken this step.

The move followed a decision last month from the regional director of the National Labor Relations Board that the players were, in fact, employees of the school. Dartmouth this week filed an appeal of that decision.

The team’s vote was 13-2 in favor of joining the union, and the players say they hope other Ivy League schools follow suit.

Experts say all of this has the potential to drastically change the landscape of college sports.

Aaron Hernandez is assistant dean and executive director of the Bud Selig Sports Law and Business Program at Arizona State University. He says the National Labor Relations Board's decision wasn’t all that surprising, since the agency tends to reflect the policies of the presidential administration in office at the time.

The Show spoke with him more about this, before the Dartmouth basketball team voted to unionize. 

Full interview

AARON HERNANDEZ: So in this case, so being defined as an employee in the law is different under different parts of the law. So the reason the NLRB has jurisdiction in this case is because these are private entities. So when Northwestern petitioned to form a union back in, I think it was 2015 or 2016, they initially were, were allowed to do that under that regional director's ruling. And the reason that the NLRB ultimately declined jurisdiction was because there are other parts of the labor force, particularly the Big 10 conference that are public employees of Northwestern was the only private institution in that conference, is the only private institution in that conference.

The difference here is that Dartmouth and the rest of the labor force, which would be the Ivy League, ... would they would all be private employees? And so the NLRB certainly has jurisdiction. It's different for public sector employees. Just being defined as an employee in the law is, is different in different areas. So in this specific area of the law under the National Labor Relations Board, what it means is that Dartmouth student athletes would be able to vote on whether or not they can unionize.

MARK BRODIE: Well, and if that were to happen, let's play this out a little bit. Does that mean that for example, Dartmouth student athletes could try to collectively bargain with university? And, in theory, if they were unhappy with their working conditions, like could go on strike and, and skip games, that kind of thing?

HERNANDEZ: For sure. Yeah, that's exactly what it means. The, the, the ability to unionize means you do engage in collectivized bargaining. You also have to determine how, how much, like, how, how wide and how big of a scope of this union would be, you know. So would, would these Dartmouth athletes just be the Dartmouth athlete union? You know, would it include certain sports? So the scope of the union would be something they'd have to determine but they, they, for certain would be able to collectively bargain as employees of, of this university and, you know, make a, make a number of, of, of demands and in the collective bargaining process. And if obviously those demands weren't met, they could, they could strike. It would, it would be, it would be something very different from what we're used to seeing in college athletics.

BRODIE: Yeah. This seems like if it goes into effect would be a pretty significant change in college sports at a time when there is already quite a bit of significant change in college sports.

HERNANDEZ: Sure. Yeah, it, it'd be, I think it'd be as, as big of a change as you could, you could possibly imagine because now that you have a, a government entity, recognizing these student athletes, I guess you wouldn't really be able to call them student athletes anymore. They're, they're employees of, of the, of the university. There's a number of consequences for that though.

BRODIE: What would some of those consequences be? What, I guess both on, on the, on the pro and the con side.

HERNANDEZ: So, I mean, just the, there are certain protections that you'll be able to have. I mean, if, if you're able to unionize and collectively bargain and you have, you have leverage in that process, obviously you're able to get more for yourself as an employee, certain protections, you know. I mean, in, in any other labor union you find, you'll, you'll find breaks defined in the CBA, you can find, you know, days of the week that you can take off, what our work schedule looks like. You know, that now the student athletes or college athletes, I guess we'd put them in this case, they'd be able to, they'd be able to have a much larger say over those terms.

But the slippery slope of becoming an employee or you're getting paid, it's not entirely clear if these student athletes who've been enjoying this, this kind of limbo that, that they're in right now as it, as it pertains to the IRS would continue to enjoy that. So if you're an employee and you get benefits from me as your employer, a number of those things are taxable, right? And so if I in any other world, student athletes, the, the compensation they receive right now or the remuneration that they receive right now for being an athlete is, is, is pretty substantial. You get your scholarship, you get gear, you get training, you get food, you get your room, you get your board, you get travel taken care of. There's all these, these things that, comp tickets you, there's all these benefits that accrue that currently the IRS is not tracking on. I think that, the, the further away you get from the, the current situation that you're in as a student athlete, the closer you get to being a true employee and true employees, regular Americans, like, like you and myself, like, we get taxed on, on those things.

The, the, the other thing is when you have an employee-employer relationship, if you're a basketball student athlete at, at Dartmouth, you're, you're largely going to go get your education. If, if your performance doesn't match up with the amount of stars that, you know, were, were on your recruiting profile, it really doesn't have there, there's not many consequences other than you just don't get the amount of playing time that you'd hoped for. You still get to have your education, you still get all those benefits. Whereas if you don't perform in the workplace, yeah, you get fired.

BRODIE: Right. I'm curious what this all means in the world of name, image and likeness. Like, how does NIL play into any or all of this?

HERNANDEZ: That's a good question. It's something that I've been thinking about, you know, my impression has been ever since NIL came online a couple of, of years ago in college athletics that it, it's kind of been the smokescreen for like, this is just kind of a roundabout way where we can, we can try to, to pay these players for their services, employment coming online. I almost feel like NIL is gonna lose a ton of traction for like what you've seen in the last couple of years because I'm not entirely certain how marketable these college athletes actually are. Some are, but these big NIL deals are clear, right now, clearly, being driven by, by boosters and collectives that wanna be competitive in football and, and basketball. And if you can just get around the, the big charade that it is right now, what I think is gonna happen is that the NIL industry is going to have a, a significant attraction.

And what you really want to pay attention to is labor and employment law because now you're looking at that, that what, what athletes really care about is not the development of their brand per se. They, they, what they really care about is how much money are you gonna offer me to go to your, your school? And if you, you cut through all of that in the labor context, then I, you know, I don't know what the future is for, for NIL as, as the, as big of an industry as it is right now. You know, I think there will always be some opportunity for, for athletes to monetize their name, image and likeness. But a as of right now that might, that might retract quite a bit, I would suppose.

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Mark Brodie is a co-host of The Show, KJZZ’s locally produced news magazine. Since starting at KJZZ in 2002, Brodie has been a host, reporter and producer, including several years covering the Arizona Legislature, based at the Capitol.