Pam Karlan: American universities are unique in the world in running these multi-million dollar athletic competitions. I mean, if you’re a soccer player in Europe, you don’t go to the university to play soccer. And if you’re a university student who wants to play soccer, you play with a club team.

William Gould IV: Yes. The NCAA President has said, “Yes, let’s compensate athletes.” A remarkable statement for the leader of this organization that for years has said, “Oh, college athletics is purely amateurism and nothing but.” 

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available. 

You know, in sports, there are some sports, particularly Olympic sports, that are a little weird. And one of my favorites is the biathlon, which combines skiing with rifle shooting. And you might say to yourself, “How do these two things fit together? It’s kind of odd.” The idea was this was what Scandinavian soldiers did in the 19th century. Our guest today is a little bit of a biathlete as well because he combines expertise in two areas that are coming together in an interesting way, but that weren’t always connected quite as much as they are today. I’m speaking about our colleague William B. Gould IV. Bill is a world renowned labor law scholar and litigator and government servant. He was a former chairman of the National Labor Relations Board, where he played a critical role in bringing the 1994-95 baseball strike to its conclusion.

He’s also the former chairman of the California Agricultural Relations Board. So he is at the peak of labor law, both the practice and the scholarship, but he’s also one of the most sports-minded academics in the legal academy. In his sports law class at Stanford, for which he enlisted former Golden State Warriors player and coach Al Attles and the sports writer Leonard Koppett as co-instructors, brought sports greats to campus to speak, including Willie Mays and Dusty Baker. His most recent book is For Labor To Build Upon: Wars, Depression and Pandemic, which was published by Cambridge University Press in the spring of 2022. We are so glad to have you with us today, Bill.

William Gould IV: Thank you, Pam. Good to be here with you. 

Karlan: So, there’s been a lot of, obviously, sports in the news, and sports law in the news. But one of the things that happened really recently is that on February 5th, the National Labor Relations Board, of which you used to be the chair, approved a union election for members of the Dartmouth College men’s basketball team. And, you know, until quite recently, I think we always thought of the students who played sports at a college as amateurs. They were not employees. They were students who just happened to be very tall or very fast or very big. So what, what’s going on here?

Gould: Well, you’re correct. Actually the regional director for the NLRB in Boston held that 16 Dartmouth basketball players who petitioned who the board to be represented as employees, that their petition could go forward. This is appealable to the full board in Washington and ultimately to the courts of general jurisdiction and may wind up in the Supreme Court. 

And the regional director looked at the considerations that we normally look at in determining who is an employee. Labor law covers employees. The universities have always maintained that their athletes are student athletes and something different from employees. They’re horrified by the idea that they could be employees. And the regional director said, well, look at the extent to which these players are actually controlled by the university: their hours of practice, the classes that may conflict with those hours of practice, and their involvement on travel, rules and regulations, which generally they cannot depart from, are established. And also the board the regional director said, even though they don’t have in the Ivy League scholarships which provide them money, they are provided various things of worth, of financial worth, tickets and the like, which compensate them. And therefore, you have the two key considerations which lead to their being regarded as employees within the meaning of labor law. 

Karlan: So one thing I read a while back was that the way that schools started referring to their students who play on their teams as student athletes was to avoid being held liable for workers comp for students who got injured playing sports.

Gould: Yes. Yes, exactly. That was the origin of it, although it has served as a useful rubric in warding off the various challenges to the concept of which have said that, no, they may be students, but there’s also an employment relationship, just as the graduate students, the graduate teaching assistants and research people, have been regarded as employees as well as students.

And, of course, we know that students perform a wide variety of functions for the university which give them employment status. 

Karlan: So universities are resistant to this, why? That is, why don’t they want to say, “Yeah, of course these students are employees in the same way that the students who work in the dining hall are employees or students who reshelf books in the library are employees?” Why don’t they want these folks to be employees? 

Gould: Well, for two main reasons. One is that they want to maintain the hierarchical relationship they have with them where these particular individuals don’t have any guaranteed input into health and safety. But also other matters that may affect them, but also money– that gradually the players have initially pointed out a decade ago, that some of the players in very big time university athletics felt that they didn’t have adequate food. Gradually that was changed and they felt that the scholarships, really, in comparison with the revenues that are coming into universities, the large salaries that are being paid to coaches who supervise them, and the salaries that are being given to university administrators, the new apparatus which supports athletics and colleges, is very much out of whack with their position, even if they get full time athletic scholarships, which many of them do, not in the Ivy League, not in Dartmouth. 

Karlan: So, suppose they have the vote and you create a union at Dartmouth. One of the things that seems hard to imagine here is the turnover, of course, is a hundred percent every four years in the workforce. And when I think about, you know, our clinic has represented a number of unions at various points, and most recently we represented a Teamsters local in a case, and he people who were instrumental inside the union, in solidarity and running the strikes and the like, are people who’ve been on the job for a long time. What’s it going to look like if the Dartmouth basketball team has a union? What do you think will change? 

Gould: Well, there are two things. One is you put your finger on something that may act as a … may retard the number of petitions that are filed by people who are unlikely to see the fruits of whatever collective bargaining agreement they’re able to negotiate. But you have to keep in mind that this is true of all athletes, professional, as well as the so called amateur ones in universities in professional sports, the same kind of resistance took place. They said, oh, these are not really employees. Well, again, the same examination produced the conclusion that they are employees within the meaning of labor law and their lives are very abbreviated, very short. In football, the average player is lucky if he can stay on for a year or so, yet we’ve had collective bargaining now in football and all the major sports for a half a century. And I think that their situation is not fundamentally different from that of athletes in the university.

The same is true of these graduate teaching assistants and research people whom we’ve seen have obtained recognition and collective bargaining rights in many unions. Right here at Stanford, the union has been certified as a collective bargaining representative. They’re going to be here for a relatively short period of time compared to the workers who were being represented in the case that you were speaking of that went to the Supreme Court, that you were involved in involving the Teamsters and their members. So, yes. There is a very short window for them. Yes. That may diminish the extent to which a lot of people will file petitions like the Dartmouth people did throughout the country. But that is not fundamentally different, this short period of the employment relationship, than professional athletes who all have collective bargaining, and graduate students who do as well. 

Karlan: That’s a super interesting point though. If you think about like the baseball players union or the NFL union, it’s one union negotiating with the entire panoply of employers. And here, each union would be a separate union, and is it going to be sport by sport at the school? It seems odd to me to have 17 different unions for 17 varsity sports. 

Gould: Well, you’re talking about two different aspects of this. I think that what the NLRB has traditionally said is that there’s no one grouping of employees which is appropriate, which rules out all others. And this issue has arisen countless times in the in the workforce so that what the regional director said in the Dartmouth case, and what the regional director said in an earlier case, which was quite important involving football players at Northwestern was, the a unit involving one university can be an appropriate unit, even though there are issues that go beyond the university.

There are rules that are devised by the NCAA, the group that supervises athletics throughout the country. There are rules that are devised by the conferences which these universities are part of. Some of these issues may not lend themselves to bargaining at a university level.  Some may. The varying financial – the ability to pay —by different universities, may lend itself to collective bargaining on a university level. So if they’re unable to bargain effectively at the university level, well, that’s something for them to work out. That’s been the traditional view of the NLRB.

Now I think that there are also, as you point out, issues that go beyond one sport, and one of them that’s most often talked about and cited is the fact that there are women’s sports as well as men’s sports. So these petitions thus far have been filed by men. We have a statute called Title IX, which obliges universities to treat women’s and men’s sports equally. And the universities have said that, look if we grant these people whatever they’re demanding or some of the things they’re demanding, that will put us out of whack with what the women are getting, and that will, in turn, create Title IX problems for us.

Well, I think there are two answers to that. One is that this may suggest that the universities could, if the women don’t have collective bargaining representation, undertake to provide the women with something comparable in the wake of their negotiations with the men. Or there could be a negotiation process which takes into account a wide variety of considerations in athletics generally, throughout the university. Or, if the women so wish, they might petition for representation themselves, and they might petition for representation which would be at the same table with the men.

So there are a variety of ways that these legal obligations involving men and women, which is something that comes up quite frequently, can be adhered to. Collective bargaining isn’t necessarily inconsistent with Title IX obligations, and it’s not inconsistent. 

Karlan: Although it’s starting to sound—and I’d agree with you on all of this—but it is starting to sound as if intercollegiate sports was not designed with this model in mind at all.

And you know, if you take off your labor law hat for just a moment and think about your sports law hat and the like, there’s also been this huge realignment of the conferences recently. There are revenue sports and non-revenue sports, and as you know, I’m spending the winter quarter teaching here in Italy and American universities are unique in the world in running these multi-million dollar athletic competitions. I mean, if you’re a soccer player in Europe, you don’t go to the university to play soccer. And if you’re a university student who wants to play soccer, you play with a club team. What do you see as the future of interscholastic sports between the kind of consolidation of the conferences, the role of Title IX, and we haven’t even talked about the name and  image and likeness stuff yet, which you might want to, you might want to describe to our listeners. 

Gould: Yes. There are a lot of issues here and it’s quite possible that down the road, this could take a very different form, that people who want to, who are serious enough about athletics to move on to the professional level, that something else will emerge in lieu of the kind of program that we have today. 

The NCAA president has said, “yes, let’s compensate athletes,” a remarkable statement for the leader of this organization that for years has said, “oh, college athletics is purely amateurism and nothing but.”  Now you have this former governor of Massachusetts, Charlie Baker, who’s the head of the NCAA, saying, “You know, let’s compensate the athletics.” And many of the universities were horrified by this idea. Let’s compensate the athletes, but only the Division I schools, the kind of major league schools that have the big television contracts and the big revenue that flows from those kinds of things. Now, you mentioned …

Karlan: Can I ask you a question about this, Bill? Which, it’s just … once we decide that the, it, it, let’s assume that the NLRB’s position gets upheld and compensation is paid to these folks for playing these sports, is there some reason why they need to be enrolled students at that point? 

Gould: The only thing that requires that they be enrolled students is the current practices of the  universities. There is – look Pam – the fact of the matter is, if you look at many of the universities that are particularly famous in the big-revenue sports – football and basketball – you would be hard put to characterize these so-called student athletes as students. 

Karlan: Well, yeah, in basketball, it’s the “one and dones,” right?

Gould: Ludden Duns, you’re just there, and are you really, are you really there in terms of classes? You have Oklahoma, which segregates their athletes from the rest of the students. So you don’t meet the students that you might want to have an interchange with and discuss what happened in a particular class. There’s no opportunity to do that. And you know, the cold reality is if you listen to some of the interviews that they’re conducting with some of the students, and the grammar that’s used by them, you would be hard put to say that these individuals are students. And the student part of the equation is kind of a fig leaf which has been exposed, I think, more recently.  Look, now Stanford has the — you mentioned realignment. Stanford has become a part of a conference where most of the schools are on the East Coast. 

Karlan: Well called the Atlantic Coast. Do you think it’s still going to be ….

Gould: It’s called the Atlantic Coast Conference. So, our students are on the airplanes for most of the semester. And you know, there are all kinds of resolutions which the University Senate is passing saying that will provide opportunities for them to get their lectures through Zoom, wherever they are, on the airplanes, that they will have exams provided elsewhere, already, of course, exams are frequently taken by students elsewhere. And the more you’re in this kind of box, cut off from the rest of the student body, I think the more difficult it becomes to identify the so-called student athletes as students. It could go towards a concept where they are athletes and not students. You mentioned name and likeness.

Karlan: Name, image, and likeness. Yes. 

Gould: NIL is the acronym. 

Karlan: So where did that come from? 

Gould: Well, that came about just about at the same time as a lot of cases that preceded some of these labor law cases. The most famous controversy arose down at Southern California. A fellow who was a very good basketball player named O’Bannon, and O’Bannon one day found out that Southern California had a video of him, O’Bannon, playing a game, and they were selling this video to other people and the university was receiving revenue. He didn’t even know that the video existed, let alone be consulted about it, and let alone, as he said was appropriate, being paid for it. And so you begin to have an attack on the university practices in this regard.

And the Supreme Court simultaneously, using antitrust law, said that university rules which restrained athletes from getting anything beyond full-time scholarships, was, could be – if the denial of benefits was in some way related to education itself – a violation of the antitrust law. And so that was the Alston decision in 2021. So the combination of these cases involving NIL, as well as antitrust cases attacking university rules, in which the Court by the way said, “who’s kidding whom.”  There’s  been money given out to athletes everywhere from time immemorial, going back to the 19th century, and antitrust laws kick in. Justice Kavanaugh, a conservative on the court, said this relationship is just like any other employment relationship. A very conservative Supreme Court justice, and you have the NLRB simultaneously saying these people are being misclassified, they’re employees and not so-called student athletes.

So all of these things have kind of led up to this new round of cases where Dartmouth and others have challenged the relationship and said that it’s an employment relationship and not a student relationship. 

Karlan: So Bill, one of the things that you just mentioned is, you know, a conservative Supreme Court in the Alston case came out with a very kind of, if you will, pro-worker ruling. And I wonder if you might speculate a little bit on why it is that the court seems to be more sympathetic to student athletes, or athlete students, or athletes who work at a college, than it seems to be to workers generally? 

Gould: Well, I think if we look at the Alston case, which the Supreme Court decided in 2021, where they held that the Sherman Antitrust Act could declare unlawful, under the Sherman Antitrust Act, practices which restrain athletes from receiving benefits beyond a basic scholarship, could be regarded as unlawful. There was a feeling that the court expressed that kind of goes back to this fig leaf concept that I’ve alluded to earlier, and that is, “Who’s kidding whom?” We know that going back to the 19th century, money has played a big role in the sports industry production at the college level. And we know that in some instances, under the table, athletes have been given money in the process.

So this is a big business. This is an industry that, contrary to what the university said the Supreme Court should do, where antitrust applies. Now, Justice Kavanaugh in a separate concurring opinion, one of the conservative members of the court, said this relationship between athletes and universities is exactly like any other employment relationship. We wouldn’t tolerate with a straight face for one second, the arguments that are being put forward that these athletes can’t receive compensation in any other industry at all. So there is a suggestion that the court is going to deal with these cases perhaps differently than they’ve dealt with the rights of labor in other industries where the court has been, for the most part, this Court has been quite anti-worker, and anti-union in the process.

Now, that’s said:  If I were an employer’s lawyer, a university employer’s lawyer, I would want to have the Dartmouth case go front and center first. Because Dartmouth is really small potatoes in the world of big time commerce in the …

Karlan: Yeah, I mean, I assume that Dartmouth’s basketball team is not a net revenue producer for the school.

Gould: Well, that’s one of the things that Dartmouth said to the regional director in this case. They said, “We’re not profitable. We lose money.” And of course the regional director said two things to that. One is, being profitable doesn’t determine the question of whether there’s an employment relationship, doesn’t resolve that question. And the other thing that the regional director said,: you’re calculating your profits so as to exclude income that you get from March Madness, that you get from ESPN television games where you have a share and where you place that, not in the basketball program, but in the athletics program also. It’s a question of bookkeeping. So the original director was quite skeptical. Nonetheless, I would rather have an Ivy League school which has no scholarships, be the case where you can make your case of first impression. Then a college like Alabama or Clemson in football, or Duke in basketball, where it’s very hard to argue against the proposition that this is big business and that these people are really employees.

Karlan: Well, yeah. I mean, I think, you know, if you think about Ivy League athletes. If they want to walk away from their sport, they can walk away at any time. And their aid from the school, their financial aid is not based on whether they’re playing the sport or not. The sport may have, as you know from reading books like The Game of Life, the sport may have played a major role in their ability to get into the school in the first place, but once you’re in the school as an Ivy League athlete, you can walk away at any time. Whereas if you walk away as a football player at USC or a basketball player at Duke, you’d give up a scholarship that’s worth $60,000 or $70,000 a year. 

Gould: You know, there is a very basic difference… 

Karlan: And one other thing. The Court’s skepticism in the Alston case, and your prediction about their skepticism generally, ties in with their skepticism about universities admissions policies generally. You know, if you think about what they did in the, in the SFFA cases, the Harvard and North Carolina cases, this is a Court that really doesn’t think very highly of higher education institutions as straight players.

Gould: True. True. Well, I think that this Court, particularly in the affirmative action arena, has expressed that. Although you have a line of decisions, here I’m thinking of the Yeshiva decision in 1980 by the Supreme Court, where the Court said —and painting with a very broad brush–that universities, professors are not employees within the meaning of the act. They are managerial employees which are impliedly excluded from statutory coverage because they really shape their own  employment relationship.  They participate in it, notwithstanding the fact that, for instance, the universities took a position on the applicability of the Age Discrimination Act to professors, which I think differed from many of the professors, without even consulting them.

So, true that this Court is kind of upset with universities, but on the other hand, you have the fact that other courts have given a great deal of deference to the universities, particularly where the employment relationship is involved. Again, I think that employment labor lawyers who want to promote broad employment status should be concerned about the fact that Dartmouth is going first because a lot of these judges are Ivy League graduates and may not see Dartmouth in quite the same manner as they’ve been accustomed to seeing Clemson or the University of Alabama. 

Karlan: Yeah, it’s interesting to think about this because, you know, the two schools where this has happened so far, Northwestern and then Dartmouth, are not your typical big sports schools. I mean, I know Northwestern’s in the Big Ten, but as you say, Bill, it will be interesting to see what happens when this goes, when this goes up. 

Gould: What the board, the board did to Northwest, the Northwestern case, the board facing the same kind of findings that the regional director made in the Dartmouth case, in the Northwestern case said, oh, allowing the union to be certified without even looking at the employee status issue would not be conducive to good labor management relations because of the fact that some of the members of the conference are public employers and not private employers, and the board doesn’t have jurisdiction over public employers.  But my board, when I was chairman, held that we could assert jurisdiction over people who did business with the government, even though we didn’t have jurisdiction over the government, and the employers would say, “Hey, look, everything is resolved in the contract between us and the government and there’s nothing that a collective bargaining can do about the matter of wages given that resolution over by an agency that you don’t even have jurisdiction over.” Our view there was the parties can decide for themselves what they can do as a practical matter in bargaining relationships.

Karlan: This is so fascinating, Bill, but as in all things connected with sports except baseball, there’s a time and the clock has run out on us. So I want to thank our colleague Bill Gould for being with us here today on Stanford Legal. I’m Pam Karlan. Thanks for listening and be sure to subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available.