You might think that the last few months have had a significant impact on college sports ‘ chances of being recognized as members of their respective institutions, conferences, and the NCAA.
On Dec. 31, 2024, the union representing Dartmouth College people’s hockey players withdrew their complaint to the National Labor Relations Board. The National College Players Association dropped their cruel work discipline complaint regarding USC basketball and men’s and women’s basketball players last Friday.
However, President-elect Donald Trump is set to change NLRB general guidance Jennifer Abruzzo, who has played a historic role in advocating for school sports as people. In an often-cited document, Abruzzo argued that D-1 school runners are employees within the significance of the National Labor Relations Act and have been misclassified as student-athletes.

The desire to recognize university athletes ‘ work may have faded.
Consider again.
The decisions made by Dartmouth and NCPA weren’t based on the legitimate standings of school sports as people. Instead, they reflected political and legal realities, such as that the NLRB will have a fresh board structure and a new president.
The Service Employees International Union, Local 560 dropped the Dartmouth people ‘ plea for military grounds in line with union payments for various work issues, as explained more thoroughly here.
Next month, the U. S. Senate declined to enhance the election of then-NLRB head Lauren McFerran, who was viewed as sympathetic of the Dartmouth people. Trump may now designate two members to the company’s table, giving the Republicans a 3-2 bulk. According to people connected to the Dartmouth people ‘ project, a Democratic majority would increase the likelihood of the participants losing at the table level. The only people in their situation with a play was Dartmouth people. A lost for the Dartmouth participants would have hampered organizing efforts at other colleges because the panel sets law.
The uncertainty surrounding the NLRB’s rejection of the SEIU as the athletes ‘ union was a contributing factor. Typically, unions are unable to take NLRB picture decisions on appeal to courts. The safest course of action was to avoid the possibility of bringing about unfavorable law, even though it might have been possible for the Dartmouth players because language in the NLRA and the Administrative Procedure Act suggested it was work.

Ramogi Huma, the NCPA’s president, stated that the move reflected increased opportunities for college athletes to receive payment outside of the work model. Most significantly, if U. S. District Judge Claudia Wilken approves the NCAA’s negotiation to resolve the House, Carter and Hubbard competitive litigations, D-1 players at participating schools may be paid for media rights, solution sales sponsorships and NIL.
The two moves, in short, were not about the NCAA, Dartmouth College, USC and the Pac-12 winning. In fact, both the Dartmouth and NCPA matters had momentum.
Last February, NLRB regional director Laura Sacks held that the Dartmouth players were employees within the meaning of the NLRA because the players perform work in exchange for compensation ( including preferred admissions into an elite university, per diem, clothing, sneakers, etc. ) and the school has the authority to oversee that activity. The decision has not been reversed or withdrawn, and continues to be cited as authoritative and persuasive.
Jake Krupski, the Dartmouth players ‘ attorney, and SEIU Local 560 member Jake Krupski, stated in a phone interview that the legal arguments and legal justification for the conclusion that the Dartmouth varsity players were employees were solid, strong, and historical. The bottom line is the premise of the fact that they are not recognized as employees has been exposed as being false and disproven. As Justice Kavanaugh put it in NCAA v. Alston, you can’t make a circular argument to justify exploitation. You can’t say,’ we can’t pay them because they won’t be amateurs, and we can’t pay them because they’re amateurs.’ It doesn’t make any sense”.
Abruzzo and NLRB Los Angeles regional director Mori Rubin argued that USC athletes were employed because they were paid for their services while being under the control of their school, the Pac-12, and NCAA, respectively. Eleanor Laws, a judge of administrative law, was considering that position and related arguments, including the fact that the term “employee” is intended to be interpreted broadly absent an enumerated exception ( none of which applies to college athletes ).

Along those lines, colleges, conferences and the NCAA using the” student-athlete” moniker to classify athletes as non-employees is not a legal test and is not determinative. Instead, a worker must demonstrate that they are in charge of providing services to another and that they have the right to do so. Another factor is whether those services are paid in tangible terms. Like other D-1 schools, USC controls players ‘ work hours through setting requirements on practices, training sessions, mealtimes and travel in ways that appear to distinguish those players from their classmates. Debate erupted as a result of USC’s control over athletes ‘ ability to conduct interviews and express opinions on social media.
Some college athletes turn to paid jobs in exchange for money after juggling a full course load and spending more than 40 hours per week on athletic-related tasks. Krupski stressed this point. He argued that a system that forbids college athletes from working “hurts the athletes ‘ academics and social experiences because a lot of them are working extra jobs on the side to make ends meet.”
College athletes are employees, or not, is a hot topic in recent legal litigation. Although they occurred before the recent rise of commercialization in college sports and before the U. S. Supreme Court held in Alston ( 2021 ) that the NCAA isn’t owed deferential status ( under antitrust law ) in setting rules that limit athletes ‘ economic opportunities, the U. S. Court of Appeals for the Ninth Circuit ( Dawson v. NCAA, 2019 ) and the Seventh Circuit ( Berger v. NCAA, 2016 ) rejected the recognition of college athletes as employees. Because they lack an expectation of income and have a primary relationship with their schools, those courts argued that college athletes are not employees.
Still, persons familiar with athlete organizing efforts indicate that if McFerran, who lost a 50-49 vote in the Senate, had won the vote, Dartmouth players and the NCPA would likely have continued their efforts —even with Trump winning the presidential election. In that scenario, the agency’s board would have maintained a 3-2 Democratic majority. The larger point:

The political outcomes haven’t changed the substance of the employment argument’s argument’s become less convincing.
There are other NLRB issues that warrant discussion. The College Basketball Players Association ( CBPA ), an advocacy group led by former University of Minnesota regent Michael Hsu, has filed unfair labor practice charges against Notre Dame, Northwestern, Dartmouth, the NCAA and the Ivy League. D-1 college athletes are employees, according to the CBPA. There is no standing requirement to file such a charge because anyone can file it if they allege an unfair labor practice that has an impact on commerce because the CBPA and Hsu are not connected to those athletic programs or to the NCAA or Ivy League.
Hsu stated in a phone interview with Sportico that his organization is considering options in light of the players ‘ and NCPA’s withdrawals. The political realities and strategic motivations behind those decisions are being considered by Hsu and his colleagues. He acknowledged that the CBPA might withdraw their petitions in the coming days with the same justification.
Hsu argued, however, that the merits of the legal argument have only grown stronger as the commercialization of college sports has increased.
According to Hsu,” I’m more than ever convinced that D-1 college athletes are employees within the NLRA.” There is no denying that they are generating billions of dollars for the industry or that they are under the control of their universities, conferences, and the NCAA. It’s unknown whether they are recognized as employees through the NLRB, state-level, or litigation, but it will happen.
Hsu’s reference to litigation is a nod to Johnson v. NCAA, which is advancing in the players ‘ favor. The player-plaintiffs assert that they are employees of their universities and the NCAA in accordance with the Fair Labor Standards Act ( FLSA ) and other state laws that guarantee the right to minimum wage and, if applicable, overtime pay. The players ‘ claims to the FLSA are not about forming a union are because the FLSA doesn’t grant that right. Instead, they’re about treating college athletes at least as well as their work-study classmates, some of whom are on scholarships and are paid to work at games ( such as in concessions or at the ticket counter ) played by the athletes.

In July, the U. S. Court of Appeals for the Third Circuit affirmed the dismissal of the NCAA’s motion to dismiss the case, which has returned to a federal district in Pennsylvania. Notably, the Third Circuit emphasized that college athletes can work as both athletes and employees at the same time.
Johnson will take time to play out but has so far enjoyed success and, unlike NLRB petitions, isn’t vulnerable to political changes.
There’s another way college athletes could be classified as employees: recognition by a state.
Because they can innovate in ways that are more difficult to achieve at the federal level, states are renowned as the “laboratories of democracies.” This has been apparent with name, image and likeness. States took action by enacting NIL statutes that would allow college athletes to use their publicity without breaking eligibility requirements while Congress considered the subject. It is plausible to imagine a state that recognizes at least some college athletes as employees, especially given that the NLRB avenue is likely to be shut down for the next four or more years.
At D-1 public universities, athletes might organize events at the state level. State labor laws govern the possibility of athletes working at private universities ( such as Dartmouth or USC), whereas the NLRA governs that possibility for athletes working at public universities. In some 50 states, college athletes at public universities almost certainly won’t be able to work or join a union. These laws vary widely across the 50 states. But in other states, particularly those with labor-friendly laws, there may be lanes for athletes to pursue employment and organize.
One irony to the NCAA, conferences, and colleges fighting athlete employment is that employment would give them control over the athletes at a time when coaches are losing top players to the transfer portal and NIL collectives appear to have seized power. An athlete may be bound by a contract to stay at a school before they can transfer. No more antitrust lawsuits would be brought against players if they organized and bargained collectively with a school, conference, or the NCAA.

That world seems much more stable than the one that college sports are currently experiencing, where the attorneys are the real winners. They’re making small fortunes off of billable hours or buying real fortunes off of a half billion dollars in class action settlement shares. Not all D-1 college athletes would have to be deemed employees, either, as my co-authors explained in a recent law review article.
If the NCAA gets its way, Congress will pass, and Trump will sign into law, legislation declaring that college athletes aren’t employees. Particularly with Congress so divided, the chances of that happening appear slim. Even if it were to happen, that type of statute would face constitutional challenges. Treating college students better than college athletes, who can also work as employees of their school through work study, is a subject of an equal protection lawsuit. Is it also a good idea to litigate whether employment classification should be done in the states.
To those points, attorney Paul McDonald, who is co-counsel for the players in Johnson, recently penned an op-ed in the Atlanta Journal-Constitution in which he warned of the legal challenge.
” For Congress, denying college athletes the same student employee status as students selling popcorn at games should be a nonstarter”, McDonald wrote. He claimed that a statute like this would “violate equal protection under the Constitution, which prohibits the government from treating students in this manner” and would be” contradicted by decades of work-study-style programs.”
You still believe that the issue of college athletes working as employees has been resolved?