Why unionizing college athletes is a bad idea | Opinion

So, Dartmouth is fighting off a demand by its men’s basketball players to create a union?

Are they Ivy League indentured servants?

Somebody call the “Boys in the Boat,” the hardscrabble, downtrodden characters in the famous book made into a movie. Tell them how hard these Dartmouth players have it.

Dartmouth’s men’s basketball team is looking to unionize and become employees of the university. The request to do so was approved by Region 1 of the National Labor Relations Board on Feb. 5 in a 26-page decision, according to reports.

Not so fast, according to Steven Suflas, an employment and labor lawyer for the Holland & Hart firm in Salt Lake City.

Suflas calls the request absurd, especially with how chaotic college athletics have become with the NIL mess. Plus, there are a myriad loose ends to this issue that the NLRB hasn’t considered.

Under federal labor law, public sector employees, those who work for a public university, are not covered. “So, all public universities are off the table,” said Suflas.

“When it comes to unionizing student-athletes, that’s an issue of state law, and no state in the country has passed that statute,” he explains. “So right from the start you are only dealing with private universities. So when you see Nick Saban at Alabama making $11 million a year, well, all those powerhouse programs are not covered.”

Suflas said there are parts of the NLRB decision that are simply silly.

“If you are a foreign-born athlete attending Dartmouth on an F1 Visa, and the NLRB now says you’re an employee, you’re not a student. You get deported. Your visa is no good anymore,” said Suflas. 

“I don’t think that’s something the NLRB thought about. That’s just kind of an additional wrinkle to this. But the other piece of it is, what about the student orchestra? What about the pep band? What about student theatrical productions, the student ballet and the student chorus? Are they all employees?”

You can be all for athletes receiving a bigger piece of the pie, the billions of dollars brought in by TV contracts, ticket sales and March Madness. That’s a legitimate case that the NCAA has been wrestling with for a decade.

But unionizing athletes and making them university employees, or state employees if it’s a public school?

Is college athletics a bottomless pit of money? Can it just print $100 bills out of nothing? According to the NCAA, only 23 athletic programs in the country operate in the black. UCLA, for heaven’s sake, faces a $100-plus million athletic department deficit.

This unionizing question is kind of lunacy, really. And it is not a matter that will be resolved short term, according to Suflas.

“This is a preliminary decision by a (NLRB) regional director. Dartmouth has already filed an appeal to the five-member National Labor Relations Board, which is kind of the high court of labor law in Washington D.C. 

“Right now, the political makeup of the NLRB is historically two Republicans/employer seats, two Democrats/union seats, and the swing seat goes to the White House. So right now, there’re three democratic appointees. With the one Republican there’s a vacancy. It’ll be interesting to see what they do. If I’m a betting man I bet they agree with the regional director. 

“And then Dartmouth will ultimately file an appeal to the United States Federal Court of Appeals, either in the District of Columbia or in Boston, the 1st Circuit. Then they’ll get a Federal Court to review the issue and ultimately an appeal to the U.S. Supreme Court. But obviously, they don’t take a lot of cases, so it may not get that far. There’s lots of litigation remaining to be done,” said Suflas.

Unionize? This case? This is the case to go forth?

The average attendance at Dartmouth basketball games is about 700 souls.

Dartmouth hasn’t made the NCAA Tournament since 1959, the longest active streak between appearances and the second longest ever. It hasn’t posted a winning record since going 14-12 in 1999.

The NLRB is suing USC and the Pac-12 for the same reasons. It says USC athletes are employees of a private school, and the league supported USC in establishing controls to limit what athletes earn from their talent.

Making athletes unionized employees is staring at even more chaos for college sports, said Suflas.

“When you step back, though, and I’ll say this in defense of the union advocates, the whole issue of college athletics right now is so screwed up.”

Suflas cited the Miami case where a wealthy real estate booster paid $800,000 for an all-conference player at Kansas State, Nijel Pack, to go to Miami. The booster already had 200 athletes at Miami on his company payroll. He recalled Miami had players Adam Papas and Isiah Wong demand a raise or they’d transfer after hearing of the Kansas player’s deal.

“Kids are leaving for more money. There are abuses and I guess you can’t blame them. But you know, this is chaos right now.”

Creating a union won’t make things any more clear.

Plus, it would actually mess things up according to public employee law. It just doesn’t marry up.