I think the college athlete employment movement is in big trouble right now

Good morning, and thanks for spending part of your day with Extra Points.

I’m still not quite back to our regular publishing schedule, but I have begun to claw out of my unread message hell from the holidays. If I haven’t gotten back to you yet, I will soon. We will have a regular publishing schedule starting next week.

Quick housekeeping note before the newsletter. I am hitting the road this month, and I want to talk to you! I will be at the NCAA Convention in Nashville from Jan 14-17. I’ll then drive down to Atlanta for the CFB National Title Game on Jan 20. Will I have credentials for the national championship game? Uh….unclear. But I am planning on being there!

If you will be in either of those places, or perhaps somewhere on the way between Nashville and Atlanta, drop me an email, I’d love to catch up.

We’ll have more information about January’s Office Hour dates/times, Extra Points Bowl stickers and other updates later next week.

Anyway, lost in the New Year’s hangovers and College Football Playoff games and everything else, a major update in the college athlete employment effort dropped on Tuesday afternoon.

The men’s basketball players at Dartmouth, who voted to unionize in 2023, have withdrawn their appeals to the National Labor Relations Board, effectively putting their efforts to bargain with the university on ice. Dartmouth had refused to bargain with the players, even after the athletes voted 13-2 to unionize.

Why would the Dartmouth players drop their unionization attempt now?

The short answer is because of politics.

For the last four years, the National Labor Relations Board has been controlled by Democrats, with the board’s general counsel, Jennifer Abruzzo, particularly sympathetic to the classification status of college athletes. But with Donald Trump returning to the White House this month, armed with GOP majorities in the House and Senate, a new NLRB general counsel will replace Abruzzo. Because the Senate voted against holding reconfirmation hearings for NLRB Chair Lauren McFerran, Trump will also have a Republican majority on the NLRB.

You know who generally isn’t very sympathetic to the rights of organized labor, especially when it comes to expanding who can and cannot join a union? Republicans. The Dartmouth team is betting that it is better to wait until Democrats control the NLRB again, because losing risks establishing precedent that could hurt future unionization efforts.

Kelleigh Irwin Fagan, the Chair of Church Church Hittle + Antrim's Collegiate Sports Law practice, told me via email:

Remind me, why should any of us care what happens about an organization labor case involving Dartmouth Men’s Basketball? Don’t they stink?

While the Big Green have really improved this season (they beat Vermont, New Hampshire and Boston College!)…yes, they are usually pretty bad. Dartmouth hasn’t made the NCAA Tournament since the 1950s, and they regularly draw fewer than 1,000 fans a game. I do not say this to be disrespectful, but Big Green men’s basketball is not anywhere close to the big-time of college sports.

But that’s one of the two huge reasons why this case is so important

Dartmouth basketball players do not get scholarships. They are not signing six-figure deals with the Big Green NIL Collective. Their program is not playing 20+ games a year on national, linear broadcasts, and their league does not get a gazillion dollars from ESPN for broadcast rights. Even taking into account the various imperfections of college sports athletic accounting, when Dartmouth says their men’s basketball team is not financially profitable, I believe them.

But the Boston office NLRB ruling found that Dartmouth athletes should be classified as employees because of how they are treated and controlled.

If athletes who are about as far removed from the trapping of Big Time Commercial Sport at the D1 level could still be considered employees based on control grounds, similar arguments could be made for virtually every single other D1 sport, from soccer to golf. In fact, you could make those same arguments for most D-II and D-III athletic programs as well.

The unionization effort at Dartmouth is also notable for who led it. Unlike other high-profile college athlete activism efforts, this didn’t originally stem from groups like the NCPA or Athletes.org. Athletes at Dartmouth were inspired by labor activism efforts elsewhere on campus, and drew from different organized labor leadership.

So what happens next?

There are two major schools of thought. There’s the argument for those optimistic about the prospects for athlete employee classification, and there’s what I think.

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