LOS ANGELES — At the heart of a USC lawyer’s opening statement in December, in an ongoing fight against the National Labor Relations Board’s effort to prove student-athletes are employees, was a reference to a precedent set a decade earlier.
Ultimately, in a landmark push to grant Northwestern football players employee status back in 2015, the NLRB declined to assert jurisdiction. In one simple decision, the board shut down more than a year of legal battles – including a regional director’s ruling in favor of the employee designation. And thus, the USC lawyer professed a decade later: this case was a “square peg in a round hole.”
Precedent is out the window, now.
On Monday, Laura Sacks, the NLRB’s regional director in Boston, ruled that members of the Dartmouth men’s basketball team were employees of the university and therefore could vote on union representation. It’s a landmark decision after players filed a petition to unionize in September – the first legal stamp on NLRB General Counsel Jennifer Abruzzo’s Sept. 2021 position that certain college athletes were employees under the National Labor Relations Act. And it provides a clear path forward for the NLRB’s fight on a different front: an ongoing hearing attempting to prove USC football and basketball players are employees of both the university, the Pac-12 and the NCAA.
The Dartmouth decision was a “good omen” for the USC case, said Ramogi Huma, director of the National College Players Association, who first filed a complaint against USC over the designation of “student-athletes” in 2022.
“This push, we’re 2 for 2,” Huma said, referring to Dartmouth and the NLRB regional director’s decision in the Northwestern case. “And we’re soon going to be 3 for 3.”
It’s a multi-pronged effort that continues to poke holes in the NCAA’s longstanding definition of amateurism, setting up a distant future when athletes could bargain and negotiate everything from contracts to labor protections. And the Dartmouth ruling is “very significant,” according to Michael LeRoy, a professor at the University of Illinois and expert in sports labor law – the first true ruling in the Abruzzo regime declaring that college athletes are employees.
The case could set direct precedent, too, for the NLRB-USC-NCAA hearing. Sacks’ decision came in large part because “Dartmouth has the right to control the work performed by the men’s varsity basketball team,” as stated in her findings; that’s been the key point of the NLRB counsel’s argument against USC. Former football players have testified extensively to the degree to which USC controlled their schedules, building a record that looks significant in the wake of Sacks’ stance. And Huma felt the NLRB’s case against USC was even stronger, given that the Dartmouth decision was reached despite the school not offering athletic scholarships – which the NLRB is arguing, in the USC hearing, is a form of compensation.
“Our case is different from the Dartmouth case factually, legally and procedurally,” USC wrote in a statement provided to the Southern California News Group. “We remain confident in our position and look forward to presenting another week of testimony when the live hearing continues later this month.”
The NCAA is “in the process of reviewing (Sacks’) decision and its potential impact on all schools and student-athletes,” an NCAA spokesperson said in a statement.
The ruling won’t have immediate ramifications. Dartmouth will appeal the decision, according to a spokesperson, and Huma estimated a final outcome could take up to three to four years. November’s presidential election could play a major factor in the outcome, too: the Joe Biden administration has been heavily for athletes’ rights, and another candidate winning could swiftly restructure the NLRB under different policy.
Still, Monday’s decision was a major step toward a complete restructuring of college sports.
“Twenty years from now, when the history of college athletics is written from a removed perspective, this case will be talked about as the start of a snowballing effect,” LeRoy said.
