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How Dartmouth athletes succeeded in union efforts where Northwestern failed

Feb 6

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Dartmouth College basketball players are not just athletes, but university employees able to negotiate salaries, practice schedules and travel schedules. That’s what a National Labor Relations Board regional official ruled on Monday, Feb. 5, clearing the path for a union vote.

Dartmouth can still appeal the decision in a case that could wind up at the Supreme Court. The players, meanwhile, are already planning their next steps, including forming an Ivy League Players Association for basketball players across the conference.

The NLRB ruling marks the first time college athletes have successfully won approval to unionize, though not the first attempt. Ten years ago, Northwestern University football players appealed to the NLRB for similar rights and were eventually shot down.

“It was always a house of cards that was doomed to crumble and 10 years later, we’re miles ahead of where we were, but the Northwestern case was certainly one of those things that took a few cards out of the base and started the whole thing tumbling down,” said David Ridpath, sports business professor at Ohio University.

Some of what Northwestern players fought for — and were denied — one decade ago is now common practice in college sports, specifically compensation around name, image and likeness, known as NIL.

How Dartmouth players’ case is different

The premise behind the NLRB denying Northwestern players does not apply to Dartmouth. At the time, the NLRB declined to take on the case because while Northwestern University is a private university, it is part of the Big Ten, which is full of public universities. The board kicked the issue to schools and the NCAA, saying allowing one school to unionize while others could not would only complicate matters.

For Dartmouth, that issue does not exist. The college is not only private but part of the Ivy League conference, which only consists of other private schools.

“This can have far-reaching implications for all the Ivy League schools and certainly something that other schools could follow,” Ridpath said. “I just look at it as a possible template and a pathway forward for all schools, public and private.”

NCAA’s many athlete-employee battles

Since losing NCAA v. Alston, a case that went all the way to the Supreme Court, the NCAA has faced several antitrust violation cases that continue to play out in court. While the NCAA has historically fought back against compensating college athletes, maintaining compensation would harm their amateur status, courts are increasingly ruling in the other direction.

“You can’t say that somebody is a student and treat them as an employee without giving them all the rights that employees have, including collective bargaining as a union,” Ridpath said. “It simply doesn’t work. You can’t hide behind the student-athlete moniker and claim that they are just students doing extracurricular activities.”

Ridpath said he could see Dartmouth’s case getting appealed all the way to the Supreme Court.

Watch the full interview in the video above.

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Simone Del Rosario: Dartmouth college basketball players are not just athletes – they are employees, able to negotiate salaries, practice and travel schedules That’s what a National Labor Relations Board official ruled this week, clearing the path for a union vote.

Dartmouth can still appeal the decision…and it could wind up all the way at the Supreme Court. It’s not the first time college athletes have tried, the same board that is green-lighting Dartmouth shut down Northwestern football players one decade ago. 

So what makes this case different? Joining me now is David Ridpath, sports business professor, Ohio University.

If this is successful, what sort of doors does this decision open up for college athletes across the board?

David Ridpath: You know, I think Simone that, you know, it is a significant decision, but it’s only a step. The fact that the Ivy League schools are all private, and the NLRB governs private organizations, it certainly can be significant for the Ivy League, and it can be an incubator for other things to happen. Plus, there’s a lot of private schools in the NCAA already that might be interested in doing this. I honestly, personally, I think this is inevitable in some fashion. This might just be a start and a template for others to follow up. 

Simone Del Rosario: Dartmouth has said that there are athletes are like their musicians that are in the orchestra because everything there is academic based, you know, athletes there don’t get scholarships for playing simply for financial need. does that become too far reaching, then if these college athletes are getting paid? Should musicians in the orchestra be getting paid?

David Ridpath: Well, I will tell you my experience, and my daughter is a fine arts graduate from Ohio University. And there’s no fine arts person that the path doesn’t universities I’ve worked at, that is under the same restrictions and policies that a college athlete, so I would challenge anybody on that not saying that they don’t exist, but to literally have every waking hour of your day controlled. And those controls are more of an employee employer control, meaning punitive measures getting dismissed from the team losing a scholarship if you don’t, if you don’t do this, you might lose playing time. Those are things that typically a fine arts graduate in my experience doesn’t have to deal with, with all due respect to them. Like I said, my daughter is one. But there’s really no fair comparison.

Simone Del Rosario: Do you anticipate Dartmouth is appealing this? 

David Ridpath: You know, I would imagine, but I would I would like to see Simone is, is for smart people to get together, dissenters and supporters alike of the current model to forge a path ahead, because I don’t think Congress is going to give the NCAA the lifeline they want. And things like this are inevitable. You can’t say that somebody is a student, and treat them as an employee, without giving them all the rights that employees have, including collective bargaining as a union. It simply doesn’t work. You can’t hide behind the student athlete moniker and claim that they are just students doing extracurricular activity. When I can tell you even here at Ohio University, it’s a highly professionalized enterprise.

Simone Del Rosario: If they do appeal, how far could this process go? Does this go all the way to the Supreme Court?

David Ridpath: You know, I would think so I think we’ve seen a lot of major issues, you know, the Austin case, the O’Bannon case recently, have all gone to the Supreme Court, or at least on their way to the Supreme Court, I should say, I could see this absolutely going that far. 

Simone Del Rosario: David, what makes this different from what Northwestern football players tried to do a decade ago?

David Ridpath: No, not much is different. The issue was, is that the big 10 is an organization that also has public schools. So that was one where Northwestern would have had to go it alone. And part of the issue why the NLRB did not take jurisdiction in that case was that there were public institutions in the big 10. The Ivy League is all private, this can have far reaching implications for all the Ivy League schools. And certainly something again, that that other schools could follow, or private schools that are primarily in the Big East Conference, for instance, the basketball conference might be able to follow. Again, I just look at it as a possible template and a pathway forward for all schools, public and private.

Simone Del Rosario: What does that tell us, though, about how difficult this would be, as far as widespread consequences are concerned, if you’re saying, Well, this works for a private school in the Ivy League conference where everybody’s private, but a school like Northwestern, which is in the big 10 with a bunch of public universities, wouldn’t have been able to achieve the same thing. 

David Ridpath: Yeah, there’s certainly those difficulties. And I’m, you know, I’m not a labor law expert, but certainly, you know, there’s you get into public institutions, there’s there’s Right to Work states, there’s some states that don’t have that have anti union laws. There’s a lot of complications. But I also think it’s something that can be overcome by the public schools, if indeed, the leaders of the NCAA know that any rules that they put in place going forward, that restrict the athlete are likely going to be overturned in court, like transfer restrictions, and I O restrictions, those will likely be overturned in court, based upon the Austin ruling by the Supreme Court, that you would hope that these people somebody would get together and say, you know, what, if we want to protect ourselves from antitrust lawsuits, the only way to do that is to collectively bargain restrictions with the athletes, then I think it can be done at the public and private level, certainly, at the NCAA level, and it is something they should really, really consider. 

Simone Del Rosario: Does any of the difference between Dartmouth and Northwestern obviously differ premises here. But is any of the difference have to do with the fact that a decade has gone by? And we’ve seen how the Supreme Court has been treating the NCAA is amateurism status to date?

David Ridpath: Oh, absolutely. I mean, we evolve and everything. So about and then certainly the northwestern effort was groundbreaking. It was when the NCAA was on a little bit stronger footing with their, you know, we’re protecting the athlete by keeping the managers that they had survived on that for so many years that worked for them, saying that they were student athletes worked for them. But it was always a house of cards that was doomed to crumble and 10 years later, we’re miles ahead of where we were, but the northwestern case, was certainly one of those things that took a few cards out of the base, and started the whole thing tumbling down. And, and certainly, this is another nail in the coffin. I think, Simone a the inevitability is, is that we’re going to have to declare at least segments of college athletes, employees, allow them to collectively bargain any restrictions or compensation. And then we should be able to move forward. But if we’re, if we’re going to continue to try to keep some type of this is about education, this is about amateurism, and this is about love of the game. I think we’re kidding ourselves. And we need to look at reality, and not look at what we want college athletics to be, we have to deal with what it is. And in any case, sit on it. We’re gonna watch the games. So let’s be fair to the players.

Simone Del Rosario: And Northwestern football player who led that charge Kain Colter had said, you know, looking back on it, that if they were to do it all over again, they would have said that not only were they Northwestern employees, but employees of the big 10 and the NCAA as a whole. Is that a path forward?

David Ridpath: I certainly think so. I mean, you know, when you bargain, you have to have a competing in it, right? So, you know, if I’m, we’re trying to unionize our faculty here at Ohio University. And so certainly we would negotiate with the university. I think being employees of a conference might be an idea that could actually work and kind of get out of the kind of the public private school issue, where the, you know, the big 10 could be, you know, a private entity or a public entity for all of its members. And that could be away could work.

Simone Del Rosario: Given this Dartmouth decision, what do you think is more likely? Are there going to be a lot of piecemeal labor movements that rippled throughout college sports? Or will the NCAA admit that athletes are employees earlier than that and make some sort of wider agreement?

David Ridpath: The NCAA is probably going to fight this till their last breath instead of being proactive. I think they’re going to be very reactive, and they’re going to continue to lose in court. They ‘re going to continue to lose at the legislative level, state and federal level, and they’re going to continue to lose in the court of public opinion. And eventually they’ll be forced, sadly, the NCAA mechanism has been one that is very arrogant, has a lot of hubris, you have a lot of people that want to protect their piece of the pie. So their changes, probably you’re going to have to be forced, rather than them coming in actually evolving and sitting down and working on real solutions.

Simone Del Rosario: Well, there are no shortage of cases against the NCAA, as you just alluded to. So we look forward to talking to you more about those David Ridpath, thank you so much for your time. 

David Ridpath: Simone, thanks so much. 

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