By Kasey Havekost and Joel Nielsen, Bricker Graydon LLP
The Dartmouth ruling has been widely reported throughout the college sports world. What do the NCAA bylaws have to do with it? Everything.
To set the scene, on February 5, 2024, the National Labor Relations Board (Board) Region 1 Director, Laura Sacks, concluded that Dartmouth basketball players are “employees” under the Act and could unionize. A significant portion of the analysis focused on the relationship between the college and the players – and more precisely – how administrators and coaches maintained substantial control over the players. This control is inextricably linked the NCAA’s rules and regulations. But how so?
The NCAA Bylaws and Student-Athlete Handbooks
The NCAA bylaws are the foundation to student-athlete handbooks, and according to the Board, student-athlete handbooks are analogous to employee handbooks. This tilts in favor of an employee-employer relationship. This is striking considering all schools have some form of a handbook for athletes – whether it is 15 or 60 pages.
Specifically, the Board determined the handbook “summarizes some of the NCAA’s most significant rules and regulations” and details “the tasks athletes must complete and the regulations they may not break.”[1] The Board picked out eight bullet points of what student-athletes could or could not do under the NCAA bylaws that were mentioned in Dartmouth’s handbook including do not receive extra benefits, do maintain amateur status, do not violate NIL rules, do not engage in outside amateur competition, and more.[2]
The NCAA Time Management Bylaws and Control
Some would argue that the ultimate form of control is dictating someone else’s time. It is no secret that coaches dictate player’s time – when they practice, play, lift weights, review film, and so on. However, coaches do so within the parameters set out by the NCAA in the time management bylaws, also known as Bylaw 17. Bylaw 17 outlines how many hours student-athletes may participate in countable athletically related activities (CARA) – which asserts a weekly limit of 20 hours per week during the playing season and 8 hours per week during the off season. Coaches have discretion on when they set the time and duration of these commitments, effectively managing significant portions of the players’ time.
The Board also noted that Dartmouth tracked CARA through a system called ARMS.[3] On most campuses, coaches are required to log their team’s weekly playing/practice hours through a software system. Again, we see the tracking and monitoring of NCAA compliance having a direct impact when considering whether colleges exert control over athletes.
The NCAA Amateurism Bylaws and Compensation
As much as the tide has shifted over the years with name, image and likeness, and subsequent court challenges to the amateurism model, student-athletes are still considered amateurs and are not permitted compensation for their athletic performance. In direct contradiction with amateurism principles outlined in Bylaw 12, the Board found that the players are compensated in a “non-traditional form because the NCAA regulations have historically prohibited a traditional form of compensation.”[4] Specifically, the players receive benefits of “early read” for admission prior to graduating high school and the college provides apparel, gear, academic services, and other supportive resources to athletes, which is a form of compensation.
Until somewhat recently, the belief was that such benefits were supportive measures for education, rather than payment for work. Now, however, it may require institutions to rethink how financial aid, scholarships, and other benefits are structured for student-athletes. In other words, perhaps they’ll be more closely tied to academic pursuits, with clearer expectations away from the competitive arena.
Are the NCAA Bylaws to Blame?
Dartmouth followed the NCAA bylaws as required, yet was also penalized for doing so. How can this be? Per the Board, Dartmouth had “significant ability to make decisions within the framework” of the NCAA Bylaws and Ivy League rules. In other words, if the NCAA or conference sets the bar high in terms of expectations of student-athletes, colleges and its coaches have the ability to set lower expectations. While this is true and great in theory, it’s not the reality on campuses. Coaches will use every (allowable) minute to prepare their players for competition.
The footnote illustrates this point:
“In many other industries, employers must operate within external regulations, including federal laws. Further, the Board has often found that a single location of a widely franchised business—such as a store or a restaurant—constitutes an appropriate unit for bargaining even if that single store or restaurant is subject to national corporate policies.”[5]
While a less-than-maximum approach might be a hard-sell, it is nevertheless immaterial under Board’s standards. All that matters is the ability.
With the heavy influence of NCAA bylaws within all divisions, if athletes at other NCAA private institutions sought to unionize, why would we assume a different outcome?
Next up, we’ll see how the Board interprets the NCAA Bylaws in the USC complaint, which adds an additional element – USC athletes included the NCAA and Pac-12 Conference as joint employers, along with USC.
[1] Trustees of Dartmouth College, Case 01-RC-325633, Decision and Direction of Election (2024) at 3, 19.
[2] Id. at 3-4.
[3] Id. at 5.
[4] Id. at 19-20.
[5] Id. at 19.
