Beyond the Brand: Integrating NIL and Employment Rights for an Ethical NCAA

Hannah Reilly

Edited by Jordan Perlman, Anikieth Datla, Judge Baskin, and Sahith Mocharla

The Dartmouth men’s basketball team recently sparked a revolution in collegiate athletics. How did a single team challenge the NCAA’s foundation, and can their movement survive a shifting political landscape? In early 2024, these athletes secured a landmark ruling from a federal labor office designating them as employees of the college. This ruling entitled them to certain guarantees from the athletic department and granted them the legal right to unionize. Following the ruling, the players acted quickly, leading to a pivotal 13-to-2 ruling in favor of the team joining the Service International Union (SEIU) Local 560. This petition for employment status marked a significant departure from modern NIL and money-making strategies.

This push for employment status marks a significant shift away from modern name, image, and likeness (NIL) strategies. While NIL allows athletes to profit from third-party endorsements, it is frequently an unstable (and often unregulated) source of income that can perpetuate systemic inequities based on gender or player status. By contrast, classification as an employee offers tangible federal protections such as the right to a guaranteed minimum wage, overtime pay, workplace safety guidelines, workers compensation for injuries, and protections against discrimination or harassment. The Dartmouth basketball team’s strategic pursuit of employee status demonstrates that while the NIL offers a layer of financial mobility, it fails to address systemic inequities. To employ a truly just system, the NCAA would need to follow Dartmouth’s lead. The Association should integrate NIL opportunities along with formal employment rights, ensuring that athletes are not just treated independently, but as protected (university) workers entitled to stability, the right to unionize, and comprehensive benefits.

The road to unionization efforts began at one of the National Labor Relations Board’s (NLRB) 26 regional offices, where a Regional Director made the decision that the Dartmouth players’ relationship with the school met the legal definition of employment. This was not merely a reaction to outside pressure. Internally, the players argued that because they performed labor for the school, they were entitled to the campus minimum wage awarded to other student employees, which was $16.25. The work was argued to have involved specific administrative details and institutional control. For example, players were required to attend certain events, follow strict regimens, adhere to travel protocols, and promote the team and brand partnerships on social media. These requirements mirror the professional obligations of university staff, where maintaining a specific public image, adhering to institutional decorum, and essentially acting as a brand ambassador are standard components of a formal job. The movement began in September of 2023, when the Dartmouth men’s basketball team filed a petition with the NLRB to be recognized as employees. This led to a series of high-stakes hearings where members of the team detailed the realities of their daily lives and responsibilities as players. By February of 2024, they secured a historic victory when the NLRB Regional Director officially ruled that they were employees under the NLRA. This was formalized in March of 2024, when the players officially joined SEIU Local 560, marking them as the first college sports team to successfully unionize [5].

As of December 2024, the team has withdrawn their petition in order to preserve this ruling. The withdrawal functioned more as a calculated halt than a full stop. This was intended to preserve the movement’s long-term viability by avoiding a binding national precedent. By pulling the petition for now, the athletes retain the legal relevancy of the ruling they received while changing their focus for broader objectives, such as “fighting the NCAA’s pursuit of an antitrust exemption” [6]. This keeps the door open for future negotiations regarding the “non-statutory labor exemption.” Effectively, the team is waiting for a “more favorable political climate” where collective bargaining can be used to shield against the NCAA’s current “no-pay-for-play” principle. By withdrawing at this stage, the players have successfully “conserved the initial finding under NLRA” that they are employees, preserving a vital framework for future efforts at both private and public institutions. Additionally, the Dartmouth case established a comprehensive roadmap for public universities, which are subject to federal and state employment laws, to mimic and argue for employee status based on certain state-specified control factors [7]. These factors include university resources like “furnishing, tools, materials” and other equipment such as uniforms and practice facilities, as well as abilities like the “right to discharge” or dismiss a player for non-compliance. Since the withdrawal, the decision remains on the books as a precedent even as the team’s formal unionization efforts are currently paused due to borne political risk. Legal analysts suggest that even at public universities, courts may find athletes to be employees based on coaching supervision and training meetings [8]. 

The shift toward “wage-and-hour” employment litigation marks a major shift in the legal battle for student-athlete rights, moving beyond some of the traditional antitrust frameworks and toward concrete protections under the Fair Labor Standards Act (FLSA). This transition is illustrated in the Third Circuit’s decision in Johnson v. NCAA (2024), in which the court addressed the claims of Ralph “Trey” Johnson, a former football player for Villanova, including other Division I athletes who argued they were entitled to a federal minimum wage for their athletic labor [9]. The court rejected the “amateurism” claim as a legal safeguard, calling it a “frayed tradition.” The court specifically examined the decision in Glatt v. Fox Searchlight Pictures, Inc. This involved unpaid film interns seeking employee status under the FLSA, themselves [10]. What is now referred to as the Glatt test focuses on the “primary beneficiary” of the relationship to determine if an individual can be called an employee. In this case, the court looked at whether the intern or the employer received the greater marginal benefit from the arrangement. However, the decision in Johnson found this intern-based test as a defense was “insufficiently analogous” and ultimately inapplicable to college sports [9]. 

Consequently, the circuit court vacated the district court’s decision and remanded the case with a mandate to apply a newly established “economic realities” test grounded in common-law agency principles. This four-pronged test stipulates that college athletes may be classified as employees when they: “(a) perform services for another party, (b) necessarily and primarily for the other party's benefit, (c) under that party's control or right of control, and (d) in return for 'express' or 'implied' compensation or ‘in-kind benefits’” [10]. While the decision did not result in an immediate minimum wage mandate, it represents a shift in the legal landscape regarding employment of college athletes. By establishing that student-athletes are not “precluded from ever bringing an FLSA claim,” the Third Circuit has essentially opened the doors for future unionization and labor efforts for student-athletes, similar to that of the Dartmouth basketball team, perhaps under a more favorable administration [11]. This is a vital step towards eventually proving that elite-level athletic play, as seen in many college sports, is, by economic reality standards––as opposed to simple tradition and ‘ameteurism’––work protected by federal law.

This legal battle is further complicated by what is termed as the student employee paradox, a systemic gap within collegiate athletic departments that is increasingly difficult to justify under the FLSA. A comparative analysis reveals a stark legal incoherence: student trainers, managers, and tutors who perform essential support tasks for athletes are recognized as protected employees entitled to minimum wage and overtime pay [12]. Yet, arguably, the primary revenue generators of the enterprise, the athletes themselves, remain classified as “volunteers” excluded from base compensation and forced to take their chances with the volatility of merit-based scholarships, grants, and third-party NIL agreements [13]. This distinction is challenged by the principles of the economic realities test, which shifts the focus away from the “student” label and toward the actual nature of the working relationship. As detailed by the Department of Labor’s final 2024 ruling, the six-factor framework determines employee status by assessing the “totality of the circumstances” in order to see if a worker is economically reliant on the employer [14]. By shifting focus to the nature and degree of control as well as whether the work performed is an “integral part of the potential employer’s business,” this test suggests that an athlete’s high-performance labor is central to the university’s commercial enterprise in a way that qualifies as employment under federal law [15]. By applying the economic realities test, it becomes clear that the distinction between worker and athlete is a legal inconsistency that fails to account for the actual economic dependence and institutional control present in the modern collegiate sports model, applying to both student workers and athletes equally [16]. 

Despite the traction it has gained, the implementation of NIL deals has failed to provide an equitable compensation floor that formal employment status would guarantee, more band-aid than legitimate panacea. This is largely because the current system operates as a “pay-for-play in disguise” rather than a wage for (NIL) labor [17]. A major critique of the current landscape is the “NIL-as-salary” assumption which incorrectly labels third-party endorsement deals, often funded by booster-led “collectives,” as an effective substitute for institutional wages [18]. In reality, NIL is a commercial market for fame that realistically only creates a professional league where the wealthiest programs can essentially “outbid” others for talent. This fuels the prevalence of the NCAA transfer portal as 94% of surveyed athletes believe that their fellow athletes transfer primarily to seek more stable or lucrative money-making opportunities elsewhere [19]. By deferring to these third-party deals, universities effectively outsource their compensation obligations to a volatile marketplace fueled by alumni donations. This creates an unstable environment where two athletes who face the same physical risks and time commitments receive vastly different rewards based only on their marketability and not their employment contribution.

The statistical reality of this difference exposes a shocking inequality that highlights the need for a wage floor or standardized pay. According to 2024 NCAA data, the average NIL earnings for football and men's and women’s basketball sits at about $38,000 annually, while the median earnings are a mere $1,328. Only a few high-value contracts and the popularity of sports at the top of the pyramid skew the overall perception of athlete wealth [20]. Football accounts for a massive 72.2% of all NIL spending collectively, with men’s basketball taking another 21.2% leaving women’s basketball with a small 2.3% share, and an even smaller distribution for other sports. This disparity is even greater when examining gender-specific data. Men’s basketball players earn an average of approximately $56,000 annually, nearly five times higher than the $11,500 average for women’s basketball players [21]. Differences in market and established donor networks leave male athletes in Power Four conferences (SEC, Big 10, ACC, and Big 12) to dominate the market and essentially “outbid” smaller schools for top talent [22]. This is not to say that NIL can and should not exist in the world of college sports. However, without the floor of a minimum wage and the stability of an employment contract, the NIL era remains to be a system that perpetuates systemic inequities based on gender and player status while allowing multi-billion dollar industries to manipulate the market and evade their responsibilities as employers. 

Supporters of the current system often counter the pitfalls of individual NIL deals by pointing out the emergence of revenue-sharing efforts and a growing “team-first” mentality regarding financial distribution. This proposal centers on the creation of team-wide pools designed to ensure financial stability for teammates who may be considered “less-marketable.” This fosters a sense of intra-team redistribution where star players share their wealth from high-value NIL agreements to ensure their peers can play to the best of their ability without the worry of financial strain [23]. This dynamic fosters almost a “private employment” mentality among teammates, effectively creating a contractual duty of care where those with the greatest market influence essentially protect the team as a whole [24]. However, this is likely an unsustainable solution with harmful long-term implications. By encouraging athletes to act as small-scale employers for their peers, the universities wrongfully shift the burden of equitable compensation onto the players, especially given their young age [25]. 

The future of collegiate athletics and employment lies in the transition from isolated campus movements to organized, widespread unions that can negotiate standardized labor contracts across multiple public institutions. While the Dartmouth case essentially provided a blueprint for private universities under the NLRA, public institutions continue to rely on state-specific labor laws. Athletes at public universities must argue for employee status based on state control factors [26]. To overcome these jurisdictional hurdles, future athletes can leverage the economic realities framework from Johnson v. NCAA to establish a federally approved precedent for wage-and-hour protections while utilizing unionization to secure broader benefits like health insurance and employer liability provisions [27]. A sustainable solution is a hybrid model that maintains the NIL marketplace while layering over a formal employment structure. This model would include a base compensation where Collective Bargaining Agreements (CBAs) would establish a guaranteed compensation floor, like a conference-wide minimum wage, ensuring that all athletes receive a salary for their labor regardless of their social media following or level of public interest [28].

NIL would remain as a supplemental, high-ceiling market for “star” players to monetize their individual fame. However, this would be highly regulated––or even supplanted by federal employment standardization––to prevent the current “pay-for-play” chaos and donation-based financial instability [29]. Most importantly, the NCAA could actually benefit from this shift through the “non-statutory labor exemption.” If the NCAA enters into a CBA with a team’s union, its rules regarding player compensation would no longer be subject to the antitrust lawsuits that currently threaten the organization [30]. By utilizing the Dartmouth unionization attempt as a strategic framework as well as Johnson’s rejections of an amateurism defense as a shield from legal liability, athletes can force the NCAA into a partnership that values labor as much as it values play. Ultimately, the successful unionization of collegiate sports would replace the amateurism shield with a more professional system in which equitable base pay, workplace safety, and NIL opportunities can coexist within a legally protected framework.

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[1] Our History | National Labor Relations Board, https://www.nlrb.gov/about-nlrb/who-we-are/our-history (last visited Apr. 5, 2026).

[2] Billy Witz, Dartmouth College Basketball Players Halt Effort to Unionize, The New York Times (Dec. 31, 2024), https://www.nytimes.com/2024/12/31/us/dartmouth-basketball-unionize.html.

[3] See [2].

[4] See [2].

[5] Riley Albert, Hoops, Hurdles, and Legal Layups: How Public Universities like Indiana May Be Able to Follow Dartmouth’s Lead Towards Unionization (2024), https://scholars.unh.edu/cgi/viewcontent.cgi?article=1043&context=unhslr.

[6] See [5].

[7] Barry Billings, Employees or Amateurs?—How Johnson v. NCAA Could Change the Game of College Athletics Forever, American Journal of Trial Advocacy (Sept. 30, 2025), https://cumberlandtrialjournal.com/employees-or-amateurs-how-johnson-v-ncaa-could-change-the-game-of-college-athletics-forever/.

[8] See [7].

[9] See [7].

[10] Glatt source

[11] See [7].

[12] Geoffrey Rosenthal, College Play and the FLSA: Why Student-Athletes Should Be Classified as “Employees” under the Fair Labor Standards Act, 35 Hofstra Labor & Employment Law Journal (2017), https://scholarlycommons.law.hofstra.edu/hlelj/vol35/iss1/6. 

[13] See [7].

[14] Holly H. Williamson, DOL’s New Six-Factor “Economic Realities” Test: Navigating Changes in Independent Contractor Classification, (Jan. 22, 2024), https://www.hunton.com/hunton-employment-labor-perspectives/dols-new-six-factor-economic-realities-test-navigating-changes-in-independent-contractor-classification.

[15] See [14].

[16] See [12].

[17] W. Czekanski & Amanda Siegrist, The Making of Modern-Day NIL Laws: The Past, Present, and Future of Amateurism and Commercialization in College Sport, 17 Journal of Issues in Intercollegiate Athletics (2024), https://scholarcommons.sc.edu/jiia/vol17/iss1/1.

[18] Sportse Media, NIL Is Bad: How the Current System Is Failing College Sports, SportsEpreneur (Jan. 2026), https://sportsepreneur.com/nil-is-bad-system-failing-college-sports/. 

[19] See [17].

[20] Eddie Pells, When 2025 Arrives, so Will the End of the Amateur Athlete in College Sports, wane.com (Dec. 22, 2024), https://www.wane.com/top-stories/ap-top-headlines/ap-when-2025-arrives-so-will-the-end-of-the-amateur-athlete-in-college-sports/.

[21] See [20].

[22] See [18].

[23] See [17].

[24] Julie Stales, College Athlete Revenue Sharing and NIL: Financial Considerations and Implications, Jacksonville State University (2025), https://www.subr.edu/assets/subr/COBJournal/College-Athlete-Revenue-Sharing-and-NIL.pdf.

[25] See [23].

[26] See [5].

[27] Olivia Tomasula, The Newest Advancement for Collegiate Athletes and Their Fight for Employment Status, Seton Hall University (2026), https://scholarship.shu.edu/cgi/viewcontent.cgi?article=2682&context=student_scholarship.

[28] See [27].

[29] See [26].

[30] See [26].