Interview on Dartmouth Basketball with Labor Law Expert Eddie Bonett
Interview on Dartmouth Basketball with Labor Law Expert Eddie Bonett
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Bio:
Edward J. Bonett is a Labor Law expert who spent 22 years as an attorney in the Philadelphia office of the National Labor Relations Board. During his time there, Bonett litigated labor law cases and negotiated dozens of complex settlements. Currently, he works for Capozzi Adler, P.C., representing employers in labor relations, which includes collective bargaining, and litigating employment-related claims. He also serves as a pro bono mediator for the U.S. Equal Employment Opportunity Commission. In his free time, he coaches youth sports in the Philadelphia area and teaches Labor Law at Villanova Law School. Bonett holds a bachelor’s degree from Drexel University, an MBA from Villanova University, and a law degree from Temple University
Some answers have been slightly edited for clarity
Q: There seem to be two separate timelines in the future resolution of this case–the Dartmouth players’ vote to join a union and the University’s eventual appeal–could you share a bit about each, how they work, and when we might expect a resolution?
A: So, the regional director who issued the decision will now work with the two sides (players and University) to come up with a date for the election, which, according to the opinion, will be in person. They’ll set up the election, and the University will be required to post a notice, prepare ballots, etc…
In the meantime, the university can appeal by filing a request for review, which goes to the board in Washington. The appeal goes to the full board in Washington, where there are currently four members, three democrats, and one republican. The board can immediately block the election, or they can say: run the election, but impound the ballots. If they impound the ballots, they will run the election, but won’t post the results yet. Someone from the region will run the election, secret ballot.
We’re looking at an election within a month – 25 to 35 days after a decision like this. So maybe as little as 4 or 5 weeks. (Editor Update: After we talked, an election was scheduled, then pushed back to March 5th.) The request for review is filed immediately – within 10 days, and at that point the board will say something about the election – most likely, they will impound the ballots. Then, their ultimate decision may take a few months.
Q: This isn’t the first time that a regional board has determined that athletes are employees of their university. What similarities does this case share with Northwestern Football, and what are some key distinctions that may lead to a different outcome?
A: This petitioner certainly had that case in mind. But this time, you’re looking at the Ivy League, with all private colleges. That was one hurdle that tripped up the Northwestern petitioning union. Between that and the current climate surrounding NIL decisions, things have certainly changed in the landscape of college sports.
Q: The right-to-control test used by the regional board has frequently changed in the past. Are there any dangers that it may return to the entrepreneurial test under a new administration, and that the new test may affect the outcome of this case?
A: It could. The board is likely to make a decision under the current administration, so even if the republicans win the presidential election, it will take some time for the board to change. However, as we know, a new board could come in and change the law. The current board will likely adopt the regional decision. With a new board, it may depend on the political composition.
The fact that Dartmouth is a private university will likely keep it in the board’s jurisdiction. With the right-to-control test, it’s most likely the board will adopt the decision and stick to the test. Another possibility is that they compare this to graduate students and independent contractors. I think there is something unique about student athletes. If you start to use the control test, it may open things to others who are controlled by universities, people like theater majors, who have to put on a show and the university controls their hours.
It may be a cautionary thing. It may cause them to look for some other test that tightens this up a little bit. Simply using this test, you could take this down to big high school programs – big high school football and big high school basketball schools.
I don’t know that this decision has enough of the Northwestern Regional Director’s decision, which had a lot more flavor in terms of how much those college athletes put into their program. In this opinion, you have significant testimony about how academics is valued above athletics, where you may not have had the same level as that in the Northwestern case.
Q: If the current decision is upheld, how would students at other universities begin the process of unionizing? Would there be additional litigation, or would the precedent from the National Board guide their efforts?
A: Well, there’s a process beyond the board. The university, if they lose at the board, could do something called a test of cert.
Let’s assume they lose at the board, the ballots are opened, and the union wins. At that point, there is a bargaining obligation. The university could refuse to bargain and do a test of cert.
That would go to the district courts, and maybe even up to the Supreme Court. Then, whatever the court says is going to be the guidance for the future. The Board decision would be precedential across board cases. A university would probably try to distinguish this, in terms of the control, but any similar programs are going to run into the same issues. Now, you may have a D3 school that tries it, and they won’t have the same level of control, so maybe that’s a case where the student athletes are not employees under this decision.
Q: Do you have any additional thoughts on the decision by the regional board and its future effects on college athletics?
A: I am concerned. As a sports fan, not just a labor law person, there must be a different way than calling someone an employee. I worry that this may spell the end for college athletics. You may end up with the minor leagues of professional basketball and the minor leagues of professional football.
When someone is an employee, will they not be a student? What are the consequences of that? There’s tax issues, there’s issues of funding of other programs at these universities. If your basketball players are employees, are athletes in all your other sports employees? Many implications – some are positive, and some are not so positive. I do worry for the future of college athletics.
I understand the basis of trying to gain collective bargaining rights, but is calling someone an employee the best way to do it?
Have you checked out OSC’s website?
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More to come too, including links to helpful state information- agency laws and information about school policies, as well as seminar/congressional notes, worksheets, and much more!