Will Dartmouth's NLRB hearing continue march to employment model?

The eyes of the industry are fixated on the ongoing National Labor Relations Board hearing for Dartmouth’s men’s basketball players. 

It could be the next step on what many legal experts believe is a slow march to a college sports employee model.

The pre-election hearing, which began Thursday and continues Tuesday, is weighing the merits of the athletes’ contention that they are employees under the National Labor Relations Act.

When all appeals are exhausted, it could be a years-long process.

Last month, the Dartmouth men’s basketball team filed a petition with the NLRB to unionize. Thursday’s opening salvo was enlightening because it illuminated an escalating industry debate in recent years: Should athletes be deemed employees of their schools, and, if so, what would that mean for the broader enterprise?

What is the argument for Dartmouth’s players?

The crux of Dartmouth’s argument, articulated by attorneys Joe McConnell and Ryan Jaziri, is that its athletes are students first, athletes second. They underscored the fact that Ivy League athletes do not receive athletic scholarships. They said that, unlike men’s basketball programs elsewhere, the Dartmouth program loses hundreds of thousands of dollars yearly.

One of the most noteworthy exchanges occurred when the athletes’ attorney, John Krupski, cross-examined Dartmouth witness Taurian Houston, the school’s executive associate athletic director. 

In his line of questioning, Krupski – with the words “Collective Bargaining Matters” in a framed photo over his shoulder – had Houston state in clear terms that the team’s student manager receives compensation from the school through a work-study program, yet NCAA rules prohibit the athletes on the court from receiving payments from the college.

Krupski also made what he called the “circular argument” contention that stirred memories of similar words by Supreme Court Justice Brett Kavanaugh two years ago during the Alston case. In a similar vein, Krupski said NCAA amateurism rules prohibit schools from paying athletes. Therefore, when asked why schools can’t pay athletes, the NCAA says amateurism rules prohibit it.

The ‘endgame’ is an employment model

Beyond this case, the NLRB could play an integral role in shaping a new collegiate model. Several other unfair labor practice complaints have been filed in recent years. The eyes of the industry will be on the NLRB on Nov. 7 for the start of a hearing related to the charge against the NCAA, the Pac-12 and USC.

Michael Hsu, co-founder of the College Basketball Players Association, has also filed complaints against the NCAA, Northwestern, Dartmouth and last week against the Ivy League.

The potential endgame? An employment model.

“That’s my endgame,” Hsu told On3. “We have a lot of different ways of getting there. I’m in the NLRB lane – and I want to get that to happen.”