Want to avoid an employee model? Experts say schools must relinquish control

Dartmouth’s men’s basketball players vote Tuesday on whether Service Employees International Union Local 560 will represent them as a union. It’s the next consequential step toward ushering in an employee model for a subset of athletes.

The union election, coming one month after a National Labor Relations Board regional director concluded the athletes are employees of their college, will be followed with great interest throughout the industry – particularly at the FCS and Division I-AAA levels.

Widespread anxiety exists within those Division I tiers about an employee model taking hold, which many stakeholders believe would force financially strapped athletic departments to cut programs, reduce them to the club level, or move to a lower division.

“There’s no revenue to share, my friend,” Louisiana Tech Athletic Director Ryan Ivey, co-chair of the FCS/D-IAAA working group assembled to create a sustainable path forward, told On3. “When I’m sharing nothing, it’s still nothing. And at the end of the year, do I get to send everyone a bill for the debt we have?”

One way schools can diminish the likelihood that their athletes will also be classified as school employees: Relinquish the amount of control schools exercise over athletes.

“That is the path forward for a lot of these schools that don’t have the ability to compensate athletes and pay athletes wages – they have to find a way to avoid the employment classification,” Boise State sports law professor Sam Ehrlich told On3. “I don’t think that’s impossible at all. Control is always going to be the biggest factor.”

Dartmouth exercises “significant control over the basketball players’ work,” the NLRB regional director in the Dartmouth case, Laura Sacks, stated in her ruling.

‘Multiple’ financial models needed in college sports

Sacks noted that the Dartmouth Student-Athlete Handbook in many ways functions as an employee handbook, detailing mandatory tasks and regulations they must not break. Dartmouth determines when players practice and play, review film, engage with alumni or take part in team-related activities. 

For road games, the college determines when and where players will travel, eat and sleep. Special permission, she noted, is required for a player to even get a haircut during a trip. Sacks wrote that no evidence exists that other members of the student body are so strictly supervised when they leave campus. 

An NLRB spokesperson told On3 on Friday that if the majority of voters (players) choose union representation on Tuesday, then the union would represent all of the voters in the bargaining unit: All basketball players on the men’s varsity basketball team employed at Dartmouth.

Regarding revenue issues at the FCS/Division I-AAA level, Sacks also wrote that the “profitability of any given business does not affect the employee status of the individuals who perform work for that business.”

Schools at the FCS/Division I-AAA level and those in the two super conferences – the SEC and Big Ten – operate in different worlds, underscoring the need for multiple financial models in college sports’ new world order.

“Yes, for sure, because we’re not dealing with one shoe fits all,” Chicago-based attorney LaKeisha Marsh, chair of the collegiate athletic practice at Akerman LLP, told On3 on Friday. “I think you would need multiple models. There is change on the horizon, for sure. We just have to see if it is going to be voluntary or if it will be forced.”