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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. As March Madness begins, we will start and end the show today talking about college basketball. Coming up later, we'll discuss the new all-time scoring lead leader in college hoops*, Caitlin Clark, and the ongoing rise in popularity of the women's game. Right now, it's the groundbreaking decision by the Dartmouth men's team to form a union. Can student athletes do that? What's this all about? We are now in the NCAA Division I basketball tournament, also known as March Madness.

It's a single elimination tournament that determines this year's national champion in the National Collegiate Athletic Association, the NCAA. Last year, the men's championship game UConn over San Diego State on CBS averaged a record low 15 million viewers, little under 15 million viewers, according to Forbes. Still, that viewership was higher than any of the six NBA Finals games, pro basketball, which came in the previous season. That year, 2022, NCAA Division I athletics generated $17 billion in revenue. Now, with all that attention and revenue, some student-athletes are asking, at what point are they employees of their school?

There are two cases before the National Labor Relations Board. That's the federal agency that has jurisdiction over private employers questioning the college sports model. I mentioned Dartmouth. Maybe some of you have heard because this has been around a few weeks. The Dartmouth men's basketball team cast votes to become the first college athletes to unionize. The school, in turn, has announced, no, it will not negotiate. Across the country, at the University of Southern California, a hearing in Los Angeles to determine whether its men and women's basketball players, as well as their football players should be deemed employees will conclude next month.

Now this fight has spilled over into Congress, too. Last week, the House subcommittee on Education and the workforce held the first congressional hearing on college athlete unionization efforts. At the same time, Senator Ted Cruz led a separate roundtable to discuss the issue of NIL or name, image, likeness rights for student athletes. Joining us now to break down the battle for pay for college athletes is Billy Witz, reporter covering college sports for The New York Times. Hey, Billy, thanks for joining. Welcome to WNYC.

Billy Witz: Yes, good morning, Brian.

Brian Lehrer: Listeners, you can join in on this. Anyone out there have ties to college sports, coaches, current athletes, former athletes? Anyone else? What do you think of this recent news? How much of a chunk of revenue should student athletes get, especially if they're in those sports that do actually rake in money for their schools? 212-433-WNYC. 212-433-9692. You can also text your comment or question to that number. Let's start with Dartmouth, Billy. The players voted to unionize earlier this month, but that's just the beginning of the fight. What are those basketball players demanding from their school, and what's their rationale that as student athletes, they get to form a union at all?

Billy Witz: There's a lot of distinctions to be made between schools like Dartmouth, which are in the Ivy League, and then others, you mentioned the USC case, which is kind of the other end of the spectrum. At Dartmouth, like in all Ivy League schools, there's no athletic scholarships. There isn't a lot of difference between, say, the rowers and the basketball players and the football players. These are sports that are subsidized by the universities. The basketball players, though, about half the team, has to work to pay for their schooling. They are on need based scholarships-

Brian Lehrer: Some of them.

Billy Witz: -so they are being compensated in some way, but their sense is that this is a job that we're doing playing basketball. The hours we're putting in are-- it's no different, really, than a work study job and that they should be paid for it.

Brian Lehrer: No different than a work study job. That might be, what, working in food service at the university or some office job in a professor's office, that kind of thing?

Billy Witz: Yes, exactly. In fact, many of the students are working those jobs where they're working 10 to 15 hours a week, even during the season. Their point is that if we were paid for doing this other job, which is playing basketball, then we wouldn't need these other jobs. It's this sense that there's an undue burden put on them by the time commitment that is required to play the sport at a Division I level.

Brian Lehrer: How did Dartmouth respond?

Billy Witz: Well, Dartmouth has-- they're going to the mat on this one. They've hired a very powerful law firm that has represented SpaceX and Twitter and Trader Joe's in pushing back against this very robust labor movement that we're seeing around the country at this time. That's another place where this case fits too is in the nationwide labor movement that we're seeing.

Brian Lehrer: How do the advocates of unionization say they would come to a fair wage? Would it have to do, like in other labor negotiations in actual businesses, with how much money their work is generating? For example, I don't know if the men's college basketball team at Dartmouth in particular makes any money for Dartmouth. We know it's some other schools that are really top NCAA schools. I don't think Dartmouth's in March Madness, right? They're not among the top 64 teams.

Billy Witz: Correct, yes.

Brian Lehrer: If you're at the University of Kentucky or something like that, that program is probably bringing in a lot of money for the school that it can then use for other things. I don't know if that's the case at Dartmouth, but is the premise that those negotiations would have to look at the books, and if a sports program was a money maker, as some are, then that would be taken into account, but if it was a money loser, that would also be taken into account?

Billy Witz: Yes, I think that's right. In theory, because this is all in theory because we haven't seen this play out, but the professional sports model, say, like the NBA or the NHL, a percentage of the gross revenues go to the players, and it's roughly about 50%. Now, as you noted, Dartmouth is not a money maker, in fact, it's a money loser. In the hearing, it cost the school about $850,000 last year with travel costs and uniforms and salaries, which, of course, is a choice that the school makes on some of these expenses, particularly salaries. That's where Dartmouth really differs from Kentucky.

Brian Lehrer: Their argument is, we're spending over $800,000 so that you can have this extracurricular activity. What do you mean you want to get paid?

Billy Witz: Correct. Yes, and the equation, of course, is different at a place like Kentucky where basketball generates millions upon millions, tens of millions of dollars, probably in the hundreds just for basketball alone.

Brian Lehrer: The other case at the University of Southern California, I see the economics of that are very different. Talk about the USC case.

Billy Witz: The USC case is been brought by a player's advocate, Ramogi Huma, who he brought a case about 10 years ago involving-- or helped facilitate Northwestern football players organizing about 10 years ago. The labor climate has changed. The general counsel of the NLRB had signaled that she felt that college athletes were employees. Huma brought this case before the NLRB. He brought the three sports that are revenue-positive sports across the country, which are football, men's basketball, and women's basketball.

It would seem that that's an easier case, not necessarily legally, but just in the court of public opinion, it's hard to say or I should say it's easier to make the case that USC football players who play routinely before 85,000 people generate in the hundreds of millions of dollars for their university, generate all kinds of publicity for the school, should be given some of that directly rather than just in nice facilities and posh travel arrangements. That there's a fundamental inequity about a system that allows that to take place.

Brian Lehrer: I see the number in your story that USC's brand-name football program helped its athletic department generate $187 million last year. Apparently, football makes money for the University of Southern California. We've covered on the show before the fact that the NCAA started allowing college athletes as individuals to make money from their name, their image, their likeness back in 2021. What has happened since then and how has this led to this broader fight to unionize?

Billy Witz: Yes, the NIL was basically created in conjunction with the NCAA being compelled to loosen their restrictions on transferring, has in essence, created a free agency so players can move from school to school quite often. We're seeing that it will not be uncommon in this tournament to see players, both in the men's and the women's side who have played not just at two schools but maybe three and sometimes four.

It's all been part of a piece of chipping away at the NCAA's authority to regulate and that goes along with these two NLRB cases too, of whether -- that's been the red line for the NCAA is that athletes cannot be considered employees because then, not only do they have to be paid directly, but then they're eligible for all sorts of workers' comp injuries and all sorts of other payments, other pieces of the pie. That's what this is about at it's heart. There's been such exponential growth in this many billion-dollar industry and the players who are at the heart of generating all this money, they want to see some of it.

Brian Lehrer: Listeners, we'll take your calls in a minute. We have some texts coming in as well. Who wants to weigh in? Who listening right now has ever played sports in college on a varsity team, men's or women's? Do you think that you should have had the right to unionize anybody there in that situation right now? Coaches as well, university administrators also, welcome to call. How much of a chunk of revenue should student athletes get especially from those sports that do rake in dollars for their schools? 212-433-WNYC. 212-433-9692.

Call or text for Billy Witz, who has covered this for The New York Times. Interestingly, the first texts that are coming in are on different sides. One listener writes, "Absolutely no right to unionize. They are first students receiving an education who must maintain an academic record to continue playing what is essentially an elective. They are on an amateur level, not professionals. Any derived income, regardless of the source, should go to the school's overall athletic program," and it continues.

Another one writes, "As a union supporter --" oh, another one writes, "It's about time universities stop exploiting student labor while raking in tens if not hundreds of millions of dollars on the backs of young, hardworking individuals, including people of color." Another one writes, "My cousin was a student-athlete and everyone said his scholarship was his pay. What people don't understand these kids and I are not only playing basketball, they're watching film, they're traveling. You can't take difficult college courses because you don't have the proper time to study, unlike if you were just there on a regular academic co-scholarship." There's a few comments from listeners. Billy, where did --

Billy Witz: Yes, Brian, I was-- [crosstalk]

Brian Lehrer: Go ahead. Jump in anywhere.

Billy Witz: One thing that I guess a distinction that I should make with Dartmouth and their unionization drive or classification is that I think there's a recognition that all of a sudden they're not going to be paid six figures to play basketball at Dartmouth. I think what they're asking for is minimum wage or it's probably going to be a lot closer to something like that, like a work-study job. Also, I think what's significant is their ability to collectively bargain for working conditions. When they practice and just the number of hours that they spend, maybe it's about what sort of tutoring they might get or additional services that they could ask for from the university. At that level, it's less likely to be about money, than it is about working conditions.

Brian Lehrer: Another listener writes, "Anyone in any situation has a right to unionize." Another one asks, "Will the USC football captain get paid the same as the women's softball catcher?" Interesting question.

Billy Witz: It is. Another question has been raised, "Oh, well, is that going to cause turmoil in a locker room or a clubhouse?" Those are the same dynamics that take place on a professional level. Tom Brady was not being paid the same amount as the backup left tackle.

Brian Lehrer: Right. Here's another text. "As a union supporter and alumni of an Ivy League school, I think Dartmouth student-athletes are in a different category than students at schools like Michigan, Ohio State, et cetera, where some of the sports teams are making the schools huge amounts of money. Also, although Ivy League schools don't give sports scholarships, playing a sport can give you an advantage in the admissions process, and you don't need to commit to playing all four years. I knew of many classmates who stopped after one or two years. I'm not sure how you would sort the schools and students but I'm not sure the Dartmouth students have--" then it trails off in a long text message.

That's an interesting point that they're getting one thing already, which is a leg up in admissions because that's one of the things that the admissions office takes into account, whether it looks like you will be qualified to play a varsity sport. They want people like that in the mix. Also, that listener brings up, again, the difference between a school like Dartmouth and schools like Ohio State or Michigan and we could also say USC in that respect. Right?

Billy Witz: Right.

Brian Lehrer: Where does that come in? The fact that Dartmouth doesn't give athletic scholarships, USC does.

Billy Witz: Yes, I think that's the slippery slope really. Some of the examples at the USC hearing, which I've been attending, it goes down to the high school level and so the cases are being made of how college sports are different or the same at the high school level, and then all the way up to the pros. Somewhere in there, you enter the college realm and you have USC football at one end, but then even below Dartmouth, you have Division III schools, say, that are also without scholarships, but they're at an even lower level.

That's going to be the tricky thing. Is this all sorts out it through the NLRB, through the courts, through congress. If they feel compelled to be involved in this, and it's something that all of this is about 50 years or so in the making from a time when the money wasn't what it is now. It's just been building, building, building. It's almost like the steam kettle boiling to the point where all of a sudden now it's whistling where it was just a slow simmer.

Brian Lehrer: Listeners, if you're just joining us, we're talking about the question of whether college athletes should be treated as employees and have the right to unionize. There are cases now before the National Labor Relations Board from Dartmouth in the east, in the University of Southern California in the west, and Bebe in Queens. You're on WNYC with Billy Witz from the New York Times. Who's covering this? Hi, Bebe.

Bebe: Hi. Thanks for having me. I should preface I'm not an athlete. I'm the opposite. I'm basically a nerd with no athletic skills, but I have helped unionize-- [crosstalk]

Brian Lehrer: I think nerd should be able to unionize too, but that's another thing.

Bebe: [chuckles] Well, I feel very strongly about everyone's ability to unionize. One thing I think it's important to flag is that a lot of these teams are predominantly people of color, or for a lot of people from low income backgrounds, it's the only way to get into these bigger schools. I think to avoid taking advantage of people from vulnerable backgrounds, it's more important than ever for them to be able to unionize.

Brian Lehrer: Bebe, thank you very much. Is this coming up at all in the cases who the athletes tend to be demographically?

Billy Witz: Yes, very, very much, or at least I should say that's one of the strong undercurrents of this. College athletic programs or at athletic administrators say, "Well, if we have to pay the players directly, then we won't be able to afford some of these other sports," which brings up the point of the main revenue generating sports. Men's basketball is majority Black, and most of these are driven by Black athletes. The sports that they're in essence subsidizing are not. They're predominantly white sports that you have to play. If you're a lacrosse player or a tennis player, this has money to play at the youth level, so the lack of diversity in those sports has-

Brian Lehrer: Based on privileg and- [crosstalk]

Billy Witz: -been an issue.

Brian Lehrer: -advantage and disadvantage. Let me play a clip, [crosstalk] because this came up at the--

Billy Witz: [inaudible 00:24:49] interesting current, and then you also have Title IX. What happens to women's sports if that is the case where schools find they don't have enough money to subsidize some of these other sports. Now, the response to that is, you make a choice to pay your football coach $10 million a year, and you make a choice to build opulent facilities and pour $100 million into renovations for football stadiums. You could easily make a different choice and put those monies into other sports, or into paying the athletes directly.

Brian Lehrer: Choices that schools make on the basis of potential revenue winds up advantaging or disadvantaging different athletes who arguably should be treated equally if these are not businesses. If these are extracurricular activities to which all students have an equal shot to participate. If they pass their tryouts and shouldn't be treated differently on the basis of how much money they make. The question of the impact on people of color and disparate impact came up at that house hearing on the topic on March 12th. Here's a clip from Mark Gaston Pearce, a former NLRB Chairman.

Mark Gaston Pearce: Racism drives public opposition to paying college athletes. For decades, the NCAA and collegiate sports have ignored a perception in the industry prevalent in many communities of color, a "plantation dynamic," in which predominant white institutions, the NCAA and universities extract value from Black athletes to pad their own pocket.

Brian Lehrer: Here's another clip from that house hearing. It was the House Education and Workforce Committee, which is chaired by Republican Congressman Bob Good of Virginia, a former athletics administrator at Jerry Falwell's Liberty University. He opened the hearing by saying both cases, the Dartmouth and the USC for unionization, are ridiculous. Here's a clip of representative Good.

Congressman Bob Good: This is ridiculous, and will expose institutions to massive new liabilities and much higher costs. Employee status will hurt student-athletes too; as they will have less freedom, lower educational standards, and revoked, or even tax scholarships if they become employees.

Brian Lehrer: Let's take a phone call. Another phone call. Monique in Terrytown, your on WNYC. Hi, Monique.

Monique: Hi. Good morning. Thank you for the taking the call. I'd like to give another perspective in the bigger picture. I have two sons that have helped their education by being an ROTC. They are student athletes in a certain level. They wake up at 5:00 in the morning. They wake up before the athletes. They don't have access to the cafeterias that the athletes have. They have to prepare for a battle. They go for weekends away, and they still have the same test. I have a son that's going to be going to the Sandhurst competition at West Point.

He has had to reorganize all of his final exams in order to participate. Basically, they're getting a scholarship and then they're going to serve for four years afterwards. One of my sons graduated from Princeton. His housemates are now making six figures. He's a second lieutenant making $45,000 a year. As a student athlete, I think you're doing this because there are intangibles of being an athlete. It's your physical body, it's leadership, it's teamwork. It's all the grit that you develop that you can then apply to so many other aspects of your life. That is very valuable, and sometimes it's even more valuable than money. That's just the perspective. Thank you.

Brian Lehrer: Monique, thank you very much, and good luck to you and your son. Billy, you hear that call about her son who was in ROTC and making that comparison. Another listener text, "Should the staff at the school paper, the robotics team, and the chess club also unionize?" Does that slippery slope question come up?

Billy Witz: Yes, definitely. I think those are the arguments that USC and Dartmouth are making that there's these intrinsic benefits built into playing sports at a major college level. The teamwork, the character, the willingness to dig in and find a way to get the job done. Those are benefits that you can't put a price tag on. I was speaking a few months ago to an athletic director, the athletic director at Florida, Scott Stricklin.

He said, "At some point, that was a fair compensation for college athletes." In some cases, the money has gotten so big that-- He was the one that felt like this needs to be revisited and it likely will be. Especially when you see what-- There's a case that probably won't go to trial for another year or so called House versus the NCAA. What it is, at its core is suing for NIL rights going back several years, maybe about five years before these rights were allowed because for decades, or really forever-- [crosstalk]

Brian Lehrer: Again, NIL rights means the right for a college athlete to make money on their name or their image, or their likeness?

Billy Witz: Yes, correct. It's essentially shorthand for endorsements. That court case could be worth billions and payouts at the NCAA in damages if the NCAA loses.

Brian Lehrer: [inaudible 00:31:51] said the NIL question only benefits the stars, right? You have to be big enough, a big enough name in order for some sneaker company or something to want you out there on television or on social endorsing their product. It's very different, it seems to me then, than the unionization question.

Billy Witz: Well, it is, but it isn't. Because at the moment, because players aren't being paid directly, a lot of-- Basically, the NIL system, if you will, has been hijacked and it's essentially a pay for play. There's, you see, Caitlin Clark, the Iowa basketball sensation is on national TV commercials, that's true NIL. She's a household, she's the most popular, well-known men's or women's basketball player in the country. There's other players that are being paid. There's an athlete at the University of Kansas that's being paid $1.2 million for his or her NIL rights this year. I'd be hard-pressed to think that that's not because of their particular skill and value in a particular sport.

Brian Lehrer: Right, interesting. Last question, we just have 30 seconds, I played those two clips from the House hearing on the topic. Is it possible that this is going to wind up in a bill, a law that Congress passes to either enable this or ban it?

Billy Witz: Well, it's an interesting question, Brian Lehrer. A year ago, I would have said not a chance because the House had a difficult enough time finding a speaker, let alone taking up legislation like this in an election year. I still think all of that still applies. With each one of these cases that comes up, it ratchets things up so that the NCAA is in increasingly, increasingly vulnerable position, and that there may just be something where the Congress is willing to step in and do something.

The other interesting thing, just politically real quick, is that these cases have some interest, both on the left as a pro-labor question and also on the far right is a government shouldn't be in the business of regulating things, although that doesn't always apply. There has been some bit of bipartisan discussion but we'll see if there's a sliver of common ground that they can land on.

Brian Lehrer: All right, very interesting. As March Madness begins, the debate is on at the National Labor Relations Board about college athlete unionization. We thank Billy Witz, reporter covering college sports for the New York Times. Listeners, thank you for all your calls and texts on this. Billy Witz, thanks a lot.

Billy Witz: Thank you, Brian. It was a pleasure.

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