https://theathletic.com/5256184/2024/02 ... ed_article
But the entire college athletics enterprise has changed dramatically since that initial Northwestern decision, which came pre-O’Bannon/Alston/NIL. Shortly after the 2021 Alston decision, the NLRB’s general counsel, Jennifer Abruzzo, issued a memo to field officers that basically said, yes, they’re employees, all but inviting other athletes to follow suit.
Should the NLRB uphold the Dartmouth decision, every athletic team at every private university could file the same unionization petition and expect it to be granted. There is already a similar case underway in Los Angeles involving USC.
A world where private school athletes are employees and public school athletes are not would be untenable for the NCAA. Further muddying the waters is the ongoing Johnson vs. NCAA federal lawsuit dealing with the same issue, which may be years away from finality. If you want to handicap the NCAA’s chances, however, know that part of its defense is a 1992 case that ruled against prisoners arguing they’re entitled to minimum wage.
I fail to see how anyone could argue with a straight face that college athletes aren’t employees, given it says right on the IRS website: “… anyone who performs services for you is your employee if you can control what will be done and how it will be done.” Given schools/coaches control athletes’ practice and travel schedules, and call mandatory meetings, etc. — duh?
But that doesn’t mean there won’t be dire consequences. If athletic directors suddenly have to carve out millions from their budgets to pay hundreds of athletes minimum wage, it’s not going to come at the expense of their salary or that of their most important coaches. They inevitably will slash their number of non-revenue teams, reduce roster sizes, etc. Many smaller schools may have to cut sports entirely. This doesn’t mean it shouldn’t happen; the law says what the law says. But it’s going to be extremely messy when it does.