The fight for collegiate athletes to be compensated fairly has long preceded the recent decision in House v. NCAA.[1] Since the Intercollegiate Athletic Association of the United States (hereinafter NCAA) was formed, student-athletes have sought compensation for their contributions to the sport and their respective universities.[2] The slow climb required student-athletes to face adversity and unnavigated waters – since the passage of the sanity code in 1948.[3] However, this limitation did not last very long, lifting the ban in 1951, allowing students and universities to aid students with scholarships.[4]
One of the most controversial issues faced in collegiate athletics now is whether students should be paid by their universities as employees. Until recently, the concept of paying student-athletes, while not unheard of, was seen as strictly prohibited.[5] However, a conversation about unionization occurred in 2015, suggesting athletes should be paid as employees. The National Labor Relations Board (NLRB) rejected Northwestern University football players’ claim to collectively bargain because allowing athletes to unionize would not further the NLRB’s overall objective of stabilizing labor markets.[6] Contrast that decision to the new proposed settlement agreement in House v. NCAA, which would allow athletes to be paid some money from a revenue-sharing pool.[7] This antitrust settlement would pay both former and current students some sort of compensation when they were not allowed to receive anything due to the rules of amateur sports.[8]
This proposed settlement makes some progress in the continued battle of student-athlete compensation. But, it fails to address the main issue in this new world of college athletics and the fight student-athletes face when attempting to unionize; whether players are employers. Currently, in a case against Dartmouth University, the NLRB ruled that “schools exerted so much control over [their] men’s basketball players that they met the legal definition of employees.”[9] The university and the NCAA disagree with this classification, causing clashing legal opinions and debate.[10] Most recently, student-athletes at Dartmouth have filed an unfair labor practice against the university for refusing to bargain with them collectively.[11] Will the proposed settlement impact the appeal by Dartmouth College? It’s possible. In the next few months the conversation as to whether a student-athlete is an employee will continue to be a hot topic.[12] If students want to unionize, the question of whether they are employees must be answered.
[1] See Billy Witz & Mark Shimaburkuro, Big Money. College Athletes and the N.C.A.A.: A Timeline, The New York Times, (May 29, 2024), https://www.nytimes.com/2024/05/29/us/ncaa-college-athletes-pay-history.html.
[2] Id.
[3] Id. The sanity code restricted financial assistance for athletes, including a ban on scholarships where athletic ability was a contributing factor.
[4] Id.
[5] Id. In 1952, the Kentucky men’s basketball team was suspended for an entire season when they paid their players and violated the rules of the NCAA.
[6] See Ben Strauss, N.L.R.B. Rejects Northwestern Football Players’ Union Bid, The New York Times, (Aug. 17, 2015), https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html. The NLRB declined jurisdiction because Northwestern was the only private school in the Big Ten and allowing students to unionize at the university would not affect the other public schools within the conference. At this point, the NLRB left the door open for them to accept jurisdiction if the conditions at Northwestern did not improve.
[7] See Jimmy Golen, Union leader: Multibillion-dollar NCAA antitrust settlement won’t slow efforts to unionize players, AP News, (May 24, 2024), https://apnews.com/article/ncaa-settlement-dartmouth-5c8306fc4240577a87e466d3dc0baf66.
[8] Id. This is a proposed settlement with a determination to be made on September 5, 2024. It is still unclear whether the court will accept the settlement as it’s proposed – or make changes based on objections made by several plaintiffs. One main objection to this settlement is that it does not make the injured whole. Further, the settlement does not bar future antitrust lawsuits against the NCAA by students or other individuals who have been injured.
[9] Id.
[10] See Ranjan Jindal, Dartmouth’s union case, NIL collectives and the rulings shaking up college athletics, explained, The Chronicle, (April 3, 2024), https://www.dukechronicle.com/article/2024/04/duke-athletics-dartmouth-union-case-nil-collectives-college-sports-revenue-sharing-explainer-ncaa.
[11] See Dartmouth basketball players union accuses school of unfair labor practices, Associated Press, (Aug. 21, 2024) https://www.espn.com/mens-college-basketball/story/_/id/40941682/dartmouth-basketball-players-union-accuses-school-unfair-labor-practices.
[12] See Chris Atwood, Reimagining the Role of the NCAA in the Era of the Employee Athlete, (Aug. 30, 2024), https://ublawsportsforum.com/2024/08/30/reimagining-the-role-of-the-ncaa-in-the-era-of-the-employee-athlete/; David Reinharz, Employee or Not Employee? That is the Question. The Test for Employee Classification and its Impact on the USC Case Before the NLRB, (Aug. 28, 2024), https://ublawsportsforum.com/2024/08/28/employee-or-not-employee-that-is-the-question-the-test-for-employee-classification-and-its-impact-on-the-usc-case-before-the-the-nlrb/.
[13] https://jasonstahl.substack.com/p/we-need-a-new-type-of-collective
Alex Brockhuizen (’25) is pursuing her JD at the University at Buffalo School of Law, with a concentration in Sports Law. After graduation, she will be working at Bond, Schoeneck & King PLLC. At UB, Alex is co-director of the Labor and Employment Law Society and Treasurer of the Buffalo Sports Law and Entertainment Law Society. She is also Business Editor of the Buffalo Law Review, where she was deemed a finalist of the Note and Comment Competition her 2L year. Alex is also a former two-sport athlete at Elmira College.