Why House legislative hearing fumbled by failing to ask one critical question

Tuesday’s House legislative hearing, which tackled the all-important college sports employee model issue, squandered a golden opportunity to ask one critical, direct question to Saint Joseph’s Athletic Director Jill Bodensteiner:

Are you willing to relinquish some of the control your school exerts over your 480 student-athletes?

The issue of control is at the heart of a potential employee model, which would usher in the era of unionization for some athletes. Unfortunately, only a small sprinkling of questions addressed that key variable during the House Education & The Workforce Committee’s legislative hearing.

The National Labor Relations Board’s regional director’s Feb. 5 ruling – which concluded that Dartmouth’s men’s basketball players (pending appeals) are employees of the college – leaned heavily on the control factor. Regional director Laura Sacks concluded that the Dartmouth Student-Athlete Handbook in many ways functions as an employee handbook, detailing mandatory tasks and regulations they must not break. 

Special permission, she noted, is required for a player to even get a haircut during a road trip. 

Lawmakers never asked Bodensteiner about the steps that schools – specifically her own – could take to reduce the chances of an employment model coming to campus. Consider the omission an unforced fumble in the open field.

Yet another missed opportunity on Capitol Hill

The NCAA continues to lobby Congress for a federal reform bill that would, among other things, codify that athletes are not employees of their schools, leagues or the NCAA. And rather than concede they need to exert less control over athletes, many schools are clinging to hopes of a Congressional lifeline.

The hearing – titled “Safeguarding Student-Athletes from NLRB Misclassification” – included some questions and commentary on the issue of control. But it was too little, too late, and not nearly specific enough – resulting in yet another missed opportunity on Capitol Hill.

Instead, we heard Rep. Bob Good (R-Virginia), chair of the Subcommittee on Health, Employment, Labor, and Pensions, making irrelevant points about athletes being “willing participants,” the “envy of their campus” and the “envy of their high school teammates who didn’t have the ability to continue in college.”

And after asking Bodensteiner about how much she estimated it would cost to make all athletes employees, Good broke down his own estimates in a lengthy response littered with fallacies. 

“Let’s say you have 500 athletes,” Good said. “You’re going to pay them $20 an hour. I know they would negotiate if Mr. [Mark Gaston] Pearce and others had their way for $20 an hour. Let’s just say it’s $20 an hour for 20 hours a week. And they do not work more than 20 hours a week. That’s just a misrepresentation, also by the way.

“Let’s say you have to pay them $400 a week times 500 student-athletes, that’s $200,000 a week. If you annualize that – I realize they’re not the full 20 hours a week during the so-called offseason – that’s some $10 million a year for the typical D-I institution. What would happen to women’s sports? … But even beyond women’s sports, men’s Olympic sports would be most impacted. We might decide we don’t want golf. And we don’t want track. We don’t want wrestling. We don’t want these other sports that don’t have Title IX protection.”

Do schools bear responsibility on employment?

Testimony by Gaston Pearce, the former NLRB chair – not to mention common knowledge of even casual college sports observers – paints a much different picture of the workload of athletes. Pearce cited that athletes often claim to work between 40 and 60 hours per week.

Saint Joe’s and schools similarly positioned in the college sports hierarchy are not money-making enterprises. Bodensteiner said her school could have 21 different bargaining units, which would create an enormous financial stress test for the university. She speculated that they’d need to double the size of the human resources department. 

In an employee model, legal experts say there could be other ramifications at schools like Saint Joe’s, including potentially cutting sports, reducing them to club level or moving to a lower competitive division. 

All fair points. But what responsibility does the school bear in making necessary changes to try to avoid an employee model?

Bodensteiner noted that pep band members, because they could receive scholarships, may be deemed employees of the school. But that obscures the issue: No one would contend that schools exert the same level of control over pep band members as they do over big-time college athletes.

‘This is a way to truly destroy an industry’

In fact, in her Dartmouth ruling, Sacks wrote that no evidence exists that other members of the student body are so strictly supervised when they leave campus. 

“They [some athletic departments] hire a Gestapo of students to follow them [athletes] around to make sure they are going to class,” Pearce said. “Those kinds of elements of control are key elements in determining whether or not the relationship is an employer relationship.” 

Bodensteiner said the Dartmouth ruling was so broad that it opens the door to Division II, Division III and potentially even high school athletes being deemed employees. She addressed the issue of control over athletes only by taking the possibility of relinquishing it to the extreme, articulating a scenario that no one is endorsing.

When athletes travel for road games, she said, “If we sent them out in their own cars to find their own Airbnb, we’d be here in a different direction.”

Left unsaid: What are some realistic ways she and Saint Joe’s could relinquish some control over their athletes?

In his closing statement, Rep. Burgess Owens (R-Utah) summed up the current state of affairs in college sports in two words: “Pure chaos.” That’s an odd characterization given that several sports, notably women’s basketball and college football, are thriving in popularity. 

“This is a way to truly destroy an industry,” Owens said of a potential employee model. “Let’s not destroy our athletic programs.”

Left unsaid: Athletic programs are no innocent bystanders with their feet strapped to train tracks as they await a hard-charging NLRB locomotive. They have a hand in the outcome here. Plus, they have the option to make moves and be nimble and proactive to elude the employment train.

They can relinquish some control over athletes to diminish the chances of an employee model taking hold at their school. If only one lawmaker asked Bodensteiner if Saint Joe’s is willing to do just that.