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After four-day NLRB hearing, wait begins in consequential Dartmouth case

Eric Prisbellby:Eric Prisbell10/12/23

EricPrisbell

After four days of witness testimony, an National Labor Relations Board regional director will issue a written decision in the coming weeks on whether Dartmouth men’s basketball players can conduct a union election.

The overarching question on the table is a consequential, existential one – something all college athletics leaders worth their salt are paying attention to – and one that has sparked intensifying industry debate in recent years: Are athletes university employees under the National Labor Relations Act? And, if so, what does that mean for the college sports enterprise?

A growing number of legal experts believe college athletics remains on a slow march toward an employee paradigm, which would dramatically reshape the industry. It would potentially usher in collective bargaining for athletes and for the first time lead to schools or conferences sharing a piece of the broadcast rights revenue pie with those who actually play in the televised games – the athletes.

Rather than get out ahead of this oncoming storm and assume a hands-on role to re-imagine a model that’s in the best interest of all stakeholders, the NCAA and some member institutions are choosing to fight this battle merely by racking up a heaping pile of billable hours for attorneys (and by making long-shot appeals to Congress). Several prominent sources say the defensive legal efforts are loosely akin to trying to walk through a hurricane while wielding an umbrella – it’s futile.

Time will tell – a long road ahead remains.

Dartmouth men’s basketball loses money each year

The Dartmouth decision, which will be made by Boston-based NLRB regional director Laura A. Sacks, will be issued over the next few weeks, following the four-day pre-election hearing that offered clear, illuminating – if not somewhat predictable – arguments from both sides.

It was fascinating on multiple fronts:

We actually got to hear a current Division I athlete – junior basketball player Cade Haskins – lay out the conditions and school protocols that he believes should warrant him and his teammates being formally deemed employees of the college. 

The testimony was striking because we rarely hear such a depiction of modern-day college sports from current athletes. Athletic departments increasingly control when current athletes talk with the media. And there’s seldom any separation between what the athlete says and team/university messaging. 

On the other hand, the hearing was also noteworthy because one of the arguments Dartmouth’s legal team espoused was that the players there are not employees because, unlike men’s basketball programs elsewhere, the Ivy League program actually loses several hundred thousand dollars per year.

While they certainly didn’t say it, I couldn’t help but think the attorneys are almost conceding the athletes at those other profit-generating schools may be employees, but that athletes at Dartmouth were indeed different because the program loses money and they don’t receive athletic scholarships.

Dartmouth attorneys asserted that the college’s men’s basketball players are students first and athletes second.

Along those lines, Haskins said that when practice conflicts with a class, he goes to class. But, he added, when a game conflicts with a class, he goes to the game.

Athletes’ attorney drilled down on notion of control

The line of questioning from the athletes’ attorney, John Krupski – who sat before a framed photo bearing the words “Collective Bargaining Matters” – most often drilled down on the notion of control. Exactly how much control do the men’s basketball coaches exert over their players?

Krupski had Haskins walk through in meticulous detail his weekly basketball itinerary. A particular focus was on meals and hotels paid for by the college, strength and conditioning sessions, mandatory practices and meetings – and the consequences of missing any of those. Krupski several times referenced the phrase “optional mandatory.”

In Dartmouth attorney Ryan Jaziri’s cross-examination of Haskins, Jaziri focused on whether coaches explicitly prohibit players from taking classes that conflict with practice time, or merely encourage them to avoid conflicts. Haskins said you can select a class time that conflicts with practice time but “we’d be asked to change that class slot.”

Also notable during his testimony, Haskins laid out that athletes agree to give their NIL rights to Dartmouth without receiving compensation. 

Another witness, Dartmouth’s Taurian Houston, executive associate athletics director for administration, testified that athletes are “not required” to sign the NIL waiver releasing their NIL to Dartmouth. If they do not sign, he added, they would not be kicked off the team but the school could not submit their names for – presumably league – awards or list the players on the team’s website roster. 

In cross-examination on the topic, Krupski asked about the implication of the NIL waiver. Houston said athletes need to sign the waiver “in order for us to promote their participation.” But if they don’t sign it, he noted, they still can participate.

During his testimony, Houston also acknowledged that the college uses athletes’ images to solicit donations from boosters.

Why can schools pay team managers but not players?

Another interesting back-and-forth occurred on the subject of paid student team managers.

Krupski hammered home that student managers can be compensated by the college through a work-study program. Yet, he stressed, the athletes on the team who perform on the court are not permitted to be compensated by the school.

Dartmouth attorney Jaziri had Houston walk through distinctions between (paid) student managers and players: managers don’t receive uniforms, don’t have to meet the same academic eligibility thresholds as players, and aren’t listed on the official squad list provided to NCAA.

On another note, Krupski initially articulated a fundamental misunderstanding of the NIL era, which began in July 2021. He incorrectly said that players risk jeopardizing their eligibility by monetizing their NIL. Later, he also incorrectly said that players are not allowed to secure representation to assist them with monetizing their NIL.

Those two statements were so off-base that I almost wondered if he made them intentionally as if to walk witnesses into a trap. Regardless, it didn’t work – witnesses corrected him both times.

Houston reaffirmed that players can monetize their NIL from outside entities but stressed that the college cannot compensate players.

Decision will be issued “as soon as practical”

On another occasion in cross-examination, Kruspki asked Houston if it would be easiest or best for athletes to avoid engaging in NIL altogether given how the space continues to evolve at a dizzying rate. Houston didn’t take the bait there and quickly said he did not agree with that.

Krupski’s main points: He repeatedly stressed the “unilateral control” he said Dartmouth has over athletes. And he called Dartmouth’s arguments “circular” and said those “self-fulfilling” arguments “defy common sense.”

He clearly laid out what he views as flawed NCAA/Ivy League/Dartmouth rationale:

The NCAA stipulates that amateur athletes can’t be paid by schools. 

So when an athlete asks why he can’t be paid, the NCAA says, “Because you’re an amateur.”

And so if you are paid, you’re not an amateur, which means you’re not an eligible college athlete — because the NCAA said amateurs can’t be paid.

(Stirs memories of Abbott and Costello routines.)

On the other hand, Dartmouth attorney Joe McConnell referenced as precedent the 2015 decision by the five-member NLRB Board, which declined to assert jurisdiction in the case of Northwestern football players. That decision came a year after a regional director deemed the athletes university employees.

It’s a different climate now. Public opinion has dramatically shifted. And several unfair labor practice charges against schools, leagues or the NCAA loom for the NLRB. Most prominently, an NLRB hearing for the complaint against the NCAA, Pac-12 and USC begins Nov. 7.

In the Dartmouth case, NLRB hearing officer Eric Duryea said Stacks would issue a decision “as soon as practical.” After that, appeals could slow-walk the process considerably.

But make no mistake, the entire industry is watching with great interest, knowing the case carries large-scale implications for the future collegiate model.