Robert McRae III has seen a lot. His grandmother, a civil rights activist in Los Angeles, often brought him along to rallies she organized and picket lines she walked — even to a gay pride parade with giant anatomical balloons that, he recalls with a smile, might not have been age appropriate.
As a Dartmouth College basketball player, he has played in N.B.A. arenas and iconic venues like Duke’s Cameron Indoor Stadium and Philadelphia’s Palestra.
Earlier this month, though, McRae’s eyes got even wider. Photographers snapped pictures of him and his teammates as they walked together to cast votes to become the first college athletes to unionize. Hours later, after his team’s final game of the season, he was surrounded by a small group of reporters who posed questions about labor and employment.
“It has a little wow to it,” McRae said of the attention.
The unionization vote is only the start of a high-stakes battle that is playing out on both coasts as some of the most consequential challenges to college sports’ amateur model take place in an unusual venue — the National Labor Relations Board, the federal agency that has jurisdiction over private employers.
Dartmouth has signaled it will be digging in to fight the ruling that its men’s basketball players be recognized as employees, “even if we have to go to court to do so,” a school spokesman said in an email. The college has recently hired the same law firm that is representing U.S.C., as well as SpaceX, Trader Joe’s and Amazon, which have argued that the board is unconstitutional.
As for the University of Southern California, a hearing in Los Angeles to determine whether its football and men’s and women’s basketball players should be deemed employees will conclude in April.
The cases are part of a broader dispute over whether athletes should directly receive a share of the more than $17 billion in revenue generated by N.C.A.A. Division I athletics in 2022. Those funds do not include so-called name, image and likeness payments to athletes from brands and sponsors, or money from booster-led collectives that is most frequently directed to football and men’s basketball players as recruiting inducements.
The biggest cash cow is the upcoming men’s and women’s basketball tournaments, which place hundreds of athletes in a national spotlight and whose colloquially known moniker, March Madness, has been monetized by the N.C.A.A. with a trademark.
The revenue-sharing battle is also a front in organized labor’s fight for workers’ rights, which spilled onto Capitol Hill last Tuesday.
Mark Gaston Pearce, a former N.L.R.B. chairman, testified that “the ability to reap those benefits equally — or at least significantly — is necessary. Otherwise, we have slavery.”
But college administrators say that only the wealthiest schools can afford to pay their players as employees, and that being compelled to do so would force the shuttering of some Olympic sports programs — like swimming, track and field, and gymnastics — whose costs are offset by the major revenue-producing sports, football and men’s basketball.
Representative Bob Good of Virginia, a Republican and a former athletics administrator at Liberty University who chaired the hearing, closed with a rebuke of Pearce, saying it was “a disgrace” that race had been injected into the hearing. “The exploited student-athlete is a myth,” Good said.
Good’s assertion, though, does raise a pertinent question: Which athletes is he talking about? There are more than 500,000 N.C.A.A. athletes playing sports ranging from football to Frisbee at more than 1,100 schools, which range from Ohio State to Oberlin.
In the Dartmouth and U.S.C. cases, lawyers on both sides have compared football and basketball players to high school players, professional athletes, marching band drummers, graduate student teachers, dining hall workers, cheerleaders, hot dog vendors and ticket takers.
Opposing counsel has eagerly pointed out why they don’t apply.
“It’s hard to find a comp and that’s what the law likes to do,” said Matt Bodie, a law professor at the University of Minnesota and a former N.L.R.B. field attorney.
There are also distinctions between the athletes at the two schools: U.S.C. athletes can be on scholarships worth close to $100,000 per year while Dartmouth, like other Ivy League schools, does not award athletic scholarships — only aid based on need, which leaves about half the basketball team working jobs during the school year to help pay for their education.
Another difference: All eight Ivy League schools are private, meaning that what applies to Dartmouth would apply to the rest of the league. But in the U.S.C. case, the Pac-12 Conference and the N.C.A.A. have been charged as co-defendants in an attempt to show that they assert control over U.S.C. athletes, along with all other athletes under their aegis. That task may be more difficult after a federal judge recently vacated an N.L.R.B. rule that sought to broaden when a company is a joint employer.
Then there is money: While U.S.C.’s brand-name football program helped its athletic department generate $187 million last year, Dartmouth’s basketball program operated at a $855,000 loss last season, according to testimony from the hearing.
“The U.S.C. case is the more traditional case,” Bodie said. “Dartmouth is kind of surprising. The economic relationship there is a little hard to see. If the basketball players are employees, why not the orchestra? Why not the people on the squash team?”
Some legal observers believe that for this reason, the board will rule on the U.S.C. case first — or at least take it into consideration when ruling on Dartmouth.
These cases were seen as inevitable since Jennifer Abruzzo, appointed as general counsel for the N.L.R.B. by President Biden, issued a memo in September 2021 that certain college athletes should be considered employees under the National Labor Relations Act.
The five-member board (currently filled by three Democrats and one Republican, with one vacant seat), which is the final arbiter in cases, is appointed by the president. So is the general counsel. If Donald Trump wins the presidential election in November, a new board majority and general counsel will be ushered in.
This probably explains U.S.C. stringing out its case with a lengthy witness list, which included the school’s band director, who spent more than three hours testifying in intricate detail how his program was run, describing how band members get into uniform before a game, the same as football players.
“It’s impossible to talk about labor law divorced from politics,” said Wilma B. Liebman, who was appointed N.L.R.B. chairman by President Obama and served on the board under Presidents Clinton and George W. Bush.
This can lead to policy whiplash. When Ms. Liebman first arrived on the board, it ruled in a case involving New York University that graduate students were employees. When Bush became president, the board reversed that decision in a case involving Brown University grad students. The board reversed course again under Obama in a case involving Columbia graduate students.
Several years after Liebman left, the board took up a case over whether Northwestern football players were employees. After the regional director in the case agreed that the players were employees, the board in 2015 declined to assert jurisdiction, and the case died with the team’s impounded votes being destroyed.
Marshall B. Babson, who was appointed to the N.L.R.B. by President Reagan and is now a labor lawyer representing management, questioned whether collective bargaining works in academia.
He called the ruling that basketball shoes (six pairs valued at $200 apiece) count as remuneration “ridiculous,” and wondered if a basketball player who flunked an exam on Mesopotamian art could file an unfair labor practice charge claiming his grade was influenced by his union activity.
“Does the board want to be in the business of pretending it’s the chair of the art history department?” Babson said.
Others suggested a more expansive view.
The Dartmouth and U.S.C. cases, Liebman said, “are very much part of this large sweep of worker activism, this bubbling up of discontent, particularly among younger workers over the last decade. It’s all of a piece.”
She added: “This activism and tumult over the years since Northwestern is building up steam to address the abuses in the system. If the N.L.R.B. issues a decision saying they’re employees, they’ll stir up this issue.”
