[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


                     SAFEGUARDING STUDENT-ATHLETES
                      FROM NLRB MISCLASSIFICATION

=======================================================================

                             JOINT HEARING

                               Before The

                  SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, 
                                AND PENSIONS

                                  WITH

                     SUBCOMMITTEE ON HIGHER EDUCATION AND 
                            WORKFORCE DEVELOPMENT

                                 OF THE
                COMMITTEE ON EDUCATION AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             SECOND SESSION

                               __________


             HEARING HELD IN WASHINGTON, DC, MARCH 12, 2024

                               __________

                           Serial No. 118-41

                               __________

  Printed for the use of the Committee on Education and the Workforce
  
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]  


        Available via: edworkforce.house.gov or www.govinfo.gov
        
                                __________

                   U.S. GOVERNMENT PUBLISHING OFFICE                    
56-769 PDF                  WASHINGTON : 2024                    
          
-----------------------------------------------------------------------------------            
        
                COMMITTEE ON EDUCATION AND THE WORKFORCE

               VIRGINIA FOXX, North Carolina, Chairwoman

JOE WILSON, South Carolina           ROBERT C. ``BOBBY'' SCOTT, 
GLENN THOMPSON, Pennsylvania             Virginia,
TIM WALBERG, Michigan                  Ranking Member
GLENN GROTHMAN, Wisconsin            RAUL M. GRIJALVA, Arizona
ELISE M. STEFANIK, New York          JOE COURTNEY, Connecticut
RICK W. ALLEN, Georgia               GREGORIO KILILI CAMACHO SABLAN,
JIM BANKS, Indiana                     Northern Mariana Islands
JAMES COMER, Kentucky                FREDERICA S. WILSON, Florida
LLOYD SMUCKER, Pennsylvania          SUZANNE BONAMICI, Oregon
BURGESS OWENS, Utah                  MARK TAKANO, California
BOB GOOD, Virginia                   ALMA S. ADAMS, North Carolina
LISA McCLAIN, Michigan               MARK DeSAULNIER, California
MARY MILLER, Illinois                DONALD NORCROSS, New Jersey
MICHELLE STEEL, California           PRAMILA JAYAPAL, Washington
RON ESTES, Kansas                    SUSAN WILD, Pennsylvania
JULIA LETLOW, Louisiana              LUCY McBATH, Georgia
KEVIN KILEY, California              JAHANA HAYES, Connecticut
AARON BEAN, Florida                  ILHAN OMAR, Minnesota
ERIC BURLISON, Missouri              HALEY M. STEVENS, Michigan
NATHANIEL MORAN, Texas               TERESA LEGER FERNANDEZ, New Mexico
JOHN JAMES, Michigan                 KATHY MANNING, North Carolina
LORI CHAVEZ-DeREMER, Oregon          FRANK J. MRVAN, Indiana
BRANDON WILLIAMS, New York           JAMAAL BOWMAN, New York
ERIN HOUCHIN, Indiana

                       Cyrus Artz, Staff Director
              Veronique Pluviose, Minority Staff Director
                                 ------                                

        SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                      BOB GOOD, Virginia, Chairman

JOE WILSON, South Carolina           MARK DeSAULNIER, California
TIM WALBERG, Michigan                  Ranking Member
RICK ALLEN, Georgia                  JOE COURTNEY, Connecticut
JIM BANKS, Indiana                   DONALD NORCROSS, New Jersey
JAMES COMER, Kentucky                SUSAN WILD, Pennsylvania
LLOYD SMUCKER, Pennsylvania          FRANK J. MRVAN, Indiana
MICHELLE STEEL, California           PRAMILA, JAYAPAL, Washington
AARON BEAN, Florida                  LUCY McBATH, Georgia
ERIC BURLISON, Missouri              JAHANA HAYES, Connecticut
LORI CHAVEZ-DeREMER, Oregon          ILHAN OMAR, Minnesota
ERIN HOUCHIN, Indiana                KATHY MANNING, North Carolina
       SUBCOMMITTEE ON HIGHER EDUCATION AND WORKFORCE DEVELOPMENT

                     BURGESS, OWENS, UTAH, Chairman

GLENN THOMPSON, Pennsylvania         FREDERICA WILSON, Florida,
GLENN GROTHMAN, Wisconsin              Ranking Member
ELISE M. STEFANIK, New York          MARK TAKANO, California
JIM BANKS, Indiana                   PRAMILA, JAYAPAL, Washington
LLOYD SMUCKER, Pennsylvania          TERESA LEGER FERNANDEZ, New Mexico
BOB GOOD, Virginia                   KATHY E. MANNING, North Carolina
NATHANIEL MORAN, Texas               LUCY McBATH, Georgia
JOHN JAMES, Michigan                 RAUL M. GRIJALVA, Arizona
LORI CHAVEZ-DeREMER, Oregon          JOE COURTNEY, Connecticut
ERIN HOUCHIN, Indiana                GREGORIO KILILI CAMACHO SABLAN,
BRANDON WILLIAMS, New York             Northern Mariana Islands
VIRGINIA FOXX, North Carolina        SUZANNE BONAMICI, Oregon
                                     ALMA ADAMS, North Carolina
                        
                        
                        C  O  N  T  E  N  T  S

                              ----------                              
                                                                   Page

Hearing held on March 12, 2024...................................     1

                           OPENING STATEMENTS

    Good, Hon. Bob, Chairman, Subcommittee on Health, Employment, 
      Labor, and Pensions........................................     1
        Prepared statement of....................................     3
    DeSaulnier, Hon. Mark, Ranking Member, Subcommittee on 
      Health, Employment, Labor, and Pensions....................     5
        Prepared statement of....................................     6
    Owens, Hon. Burgess, Chairman, Subcommittee on Higher 
      Education and Workforce Development........................     8
        Prepared statement of....................................     9
    Wilson, Hon. Frederica, Ranking Member, Subcommittee on 
      Higher Education and Workforce Development.................    10
        Prepared statement of....................................    11

                               WITNESSES

    Bodensteiner, Jill, Vice President and Director of Athletics, 
      Saint Joseph's University..................................    12
        Prepared statement of....................................    15
    Sims, Tyler A., Shareholder, Littler Mendelson...............    20
        Prepared statement of....................................    22
    Pearce, Mark Gaston, Executive Director and Visiting 
      Professor, Workers' Rights Institute, Georgetown Law Center    65
        Prepared statement of....................................    67
    Mitten, Matthew, Professor of Law and Executive Director, 
      National Sports Institute at Marquette University Law 
      School.....................................................    78
        Prepared statement of....................................    80

                         ADDITIONAL SUBMISSIONS

    Courtney, Hon. Joe, a Representative in Congress from the 
      State of Connecticut:
        Article published September 18, 2023, from The Dartmouth.   100

 
                     SAFEGUARDING STUDENT-ATHLETES
                      FROM NLRB MISCLASSIFICATION

                              ----------                              


                        Tuesday, March 12, 2024

                  House of Representatives,
                Subcommittee on Health, Employment,
                               Labor, and Pensions,
               Subcommittee on Higher Education and
                             Workforce Development,
                  Committee on Education and the Workforce,
                                                    Washington, DC.
    The Subcommittees met, pursuant to call at 10:17 a.m., 2175 
Rayburn House Office Building, Hon. Bob Good [Chairman of the 
HELP Subcommittee] presiding.
    Present: Representatives Owens, Good, Thompson, Walberg, 
Grothman, Allen, Banks, Bean, Burlison, Moran, Foxx, 
DeSaulnier, Wilson, Courtney, Bonamici, Takano, Adams, 
Norcross, Wild, Mrvan, McBath, Hayes, Manning, and Scott.
    Staff present: Cyrus Artz, Staff Director; Nick Barley, 
Deputy Communications Director; Mindy Barry, General Counsel; 
Jackson Berryman, Speechwriter; Isabel Foster, Press Assistant; 
Daniel Fuenzalida, Staff Assistant; Sheila Havenner, Director 
of Information Technology; Amy Raaf Jones, Director of 
Education and Human Services Policy; Alex Knorr, Legislative 
Assistant; Trey Kovacs, Professional Staff Member; Georgie 
Littlefair, Clerk; John Martin, Deputy Director of Workforce 
Policy/Counsel; Hannah Matesic, Deputy Staff Director Audra 
McGeorge, Communications Director; Eli Mitchell, Legislative 
Assistant; Rebecca Powell, Staff Assistant; Brad Thomas, Deputy 
Director of Education and Human Services Policy; Kelly Tyroler, 
Professional Staff Member; Seth Waugh, Director of Workforce 
Policy; Maura Williams, Director of Operations; Nekea Brown, 
Minority Director of Operations; Rashage Green, Minority 
Director of Education Policy & Counsel; Stephanie Lalle, 
Minority Communications Director; Raiyana Malone, Minority 
Press Secretary; Kevin McDermott, Minority Director of Labor 
Policy; Brittany Alston, Minority Operations Assistant; 
Veronique Pluviose, Minority Staff Director; Dhrtvan Sherman, 
Minority Committee Research Assistant; Bob Shull, Minority 
Senior Labor Policy Counsel; Melanie Kee, Minority Intern; 
Maile Sit, Minority Intern; Jamar Tolbert, Minority Intern; 
Adrianna Toma, Minority Intern; Banyon Vassar, Minority Deputy 
Director of Information Technology; Samantha Wilkerson, 
Minority CBCF Fellow.
    Chairman Good. The Joint Hearing on the Subcommittee on 
Health, Employment, Labor and Pensions and the Subcommittee on 
Higher Education and Workforce Development will come to order. 
I note that a quorum is present. Without objection, the Chair 
is authorized to call a recess at any time.
    Like most Americans, I love college athletics. I enjoy 
supporting my alma mater, Liberty University, where I worked in 
athletics administration for 15 years, and who I might add, had 
an undefeated regular season in football and played in the 
Fiesta Bowl recently.
    As is typical in the Biden administration, the National 
Labor Relations Board wants to take something we all love, 
hyper regulate it, and make it more expensive. Today's hearing 
will examine the consequences of the NLRB's misguided effort to 
classify student-athletes as employees of the university they 
attend.
    Already, an unelected bureaucrat at the NLRB deemed the 
men's basketball team at Dartmouth College to be employees. In 
another case, NLRB's General Counsel is pushing a theory that 
the NCAA and the Pac-12 Conference are joint employers of 
student-athletes. 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 taxed scholarships if they become employees. I was 
fortunate to wrestle during my time at Liberty, so I know some 
of the benefits and challenges of being an NCAA student-
athlete. Like 98 percent of student-athletes at the end of my 5 
years, I went pro in something other than my sport.
    I retired from the wrestling mat and embarked on a 17-year 
professional career in finance using the degree that I worked 
to obtain. Years later, I returned to Liberty University and 
served as the Senior Athletics Director. Given my--the Senior 
Associate Athletic Director. Given my experience on both sides 
of this issue, I know that the majority of student-athletes and 
the schools will be harmed by this proposed change.
    Student-athletes do not want to deal with union dues and 
employment contracts. The last thing colleges need is to have 
to hire more administrators to deal with more Federal 
regulations. I believe we can find ways to protect the 
interests of student-athletes and their universities without 
distorting their relationship and changing the nature of 
college athletics.
    I look forward to today's discussion. I now yield to the 
Ranking Member of the Health Employment Labor and Pensions 
Subcommittee for his opening statement.
    [The statement of Chairman Good follows:]
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. DeSaulnier. Thank you, Mr. Chairman. I want to thank 
the witnesses for being here today. The labor movement 
delivered our Nation's most necessary protections for workers, 
including minimum wage, workplace safety laws, and the 5-day 
work week. This shifted power from unscrupulous employers, not 
all employers, who profit off the backs of workers to giving 
employees an opportunity to join together for higher wages, 
better benefits, safer workplaces, and protect themselves and 
their families.
    As much as I enjoy reminiscing about my days in college, 
and college athletics, I cannot remember that much about it. I 
vaguely remember leather helmets without facemasks by the way. 
The world of college sports is vastly different now than it was 
then. Today, the collegiate sports industry rakes in billions 
of dollars, yet it is college athletes, who are the reason the 
industry is so popular, do not fully share in this profitable 
industry.
    At the same time many college athletes who are exploited 
and lack basic health and safety protections. Some have even 
experienced food insecurity and homelessness. Against this 
backdrop, college athletes are understandably looking for ways 
to level the playing field and gain a more equal voice.
    That is what this is about, and we should keep that front 
and center during today's hearing. The world has changed in 
many ways, it has certainly changed for myself and the 
Chairman, although he was more recent than I, for participating 
in college athletics. We have to understand that reality, and I 
think that is what all of us are grappling with here today.
    The Dartmouth men's basketball team recently came together 
and voted to form a union. They were found to be eligible to do 
that by the National Labor Relations Board. They are trying to 
ensure that they can advocate for safer playing conditions 
among other priorities. Contrary to what we hear today, their 
efforts do not mean the end of college athletics, and the sky 
is not falling.
    Even conservative Trump-appointed Supreme Court Justice 
Brett Kavanaugh agrees. Two years ago he said, ``the NCAA 
business model would be flatly illegal in almost any other 
industry in the United States.''
    He continued, ``College and student-athletes could 
potentially engage in collective bargaining, or seek some other 
negotiated agreement, to provide student-athletes a fair share 
of the revenues that they generate for their colleges.'' 
Justice Kavanaugh.
    Similar to athletes at other NCAA ivy league schools, 
Dartmouth players only receive need-based scholarships. While 
the team generates a considerable amount of revenue for their 
university, players have no say in their practice schedules, 
and manage part-time jobs to pay their bills and pay high out 
of pocket costs for serious injuries from practice and games.
    Athletes should be treated like people, not just sources of 
revenue for their colleges and universities. We should stand 
with them and help them get the support they need in this new 
world of college athletics. I hope we can have a real and 
meaningful conversation today, and not have this hearing turn 
into an attack on labor unions.
    I now yield to Mr. Owens for an opening statement.
    [The statement of Ranking Member DeSaulnier follows:]
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Owens. Thank you. The world of college sports is in a 
transformative period. In 2021, the Supreme Court decided NCAA 
verses Alston and ushered in college sports into a new era of 
name, image and likeness compensation, or NIL for short.
    Student-athletes have also gained newfound freedom to 
transfer to schools freely, but at its core college sports is 
about enhancing the student-athletes' academic experience, and 
molding our young people into productive citizens.
    All of this could be lost if the radical Biden NLRB has its 
way. The Biden NLRB is the most activism, pro-union, government 
agency in history. They have taken this opportunity to declare 
student-athletes to be employees. At Dartmouth, an 
unprecedented NLRB ruling classifies student-athletes as 
employees, has paved the way for basketball teams to unionize.
    In no world should a scholarship athlete be considered an 
employee for playing basketball. Even more ridiculous the 
Darthmouth basketball players do not even receive athletic 
scholarships, only financial aid based on need. Receiving 
clothes and shoes to play a sport you love does not make a 
student-athlete an employee.
    Classifying student-athletes as employees is an existential 
threat to the future of college sports on many campuses, 
increased costs in unionization, and administrative headaches 
which threaten to make low-funded programs economic and viable, 
including many women's sports and small school athletic 
programs result in few teams, few scholarships, and fewer 
opportunities for young people.
    I ran across a quote, real quick, I am going to leave with 
you, and I think it kind of states to really what is at risk 
here. This is from Al Shanker, an early union president, ``When 
school children start paying union dues, that is when I start 
representing the interests of school children.'' This is not 
about the kids; it is about union dues and their potential of 
making a lot of money from the union.
    With that being said, I am looking forward to having this 
conversation, and make sure we land on the right side of these 
college kids. With that, I yield to the Ranking Member for an 
opening statement.
    [The statement of Chairman Owens follows:]
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Chairman Good. Ms. Wilson.
    Ms. Wilson. Thank you, Mr. Owens, and thank you to the 
witnesses for your testimoneys today. As members of this 
Committee, our No. 1 priority should be, always, the student's 
well-being.
    Students' well-being was top of mind 3 years ago when 
congressional Democrats singlehandedly passed the American 
Rescue Plan Act and delivered emergency financial aid to 18 
million college students during the height of the pandemic.
    During the turbulent period, we focused on ensuring that 
students were set up for success, and I hope that today's 
hearing does not deviate from that approach. Since its 
inception, the NCAA has prohibited collegiate athletes from 
being compensated for their labor. According to the NCAA, 
athletes can take scholarships up to the full cost of 
attendance in their current educational programs, but they may 
not get funds for graduate programs, meals stipends, living 
accommodations, or variable educational expenditures.
    This puts college athletes who are entirely dependent on 
financial aid in an impossible position. Furthermore, the most 
essential voice in the room should be that of the college 
athletes because without them there would be no collegiate 
sports industry. Hear them, see them, and do what is best for 
them.
    As our witness, Mr. Gaston Pearce notes in his testimony, 
the route forward after unionization is undetermined, but we do 
know that athletes deserve a seat at the table. Allowing 
students to organize unions is an important step toward making 
college athletics a safer and more equal place for athletes to 
thrive. With that, Mr. Chair, I yield back, and I look forward 
to a productive discussion. Thank you.
    [The statement of Ranking Member Wilson follows:]
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Chairman Good. Pursuant to Committee Rule 8-C, all members 
who wish to insert written statements into the record may do so 
by submitting them to the Committee Clerk electronically in 
Microsoft Word format by 5 p.m., 14 days after the date of this 
hearing, which is March 26, 2024.
    Without objection, the hearing record will remain open for 
14 days to allow such statements, and other extraneous 
materials referenced in the hearing to be submitted to the 
official hearing record.
    We will now turn to the introduction of our distinguished 
witnesses. Our first witness is Ms. Jill Bodensteiner, I am 
sorry, who is the Vice President and Director of Athletics of 
Saint Joseph's University, which is located in Philadelphia, 
Pennsylvania.
    Our second witness is Mr. Tyler Sims, who is a Shareholder 
at Littler Mendelson in Tampa, Florida, and who before 
attending law school played NCAA Division I Hockey for 
Providence College, and then played professionally for 3 years.
    Our third witness is Mr. Mark Gaston Pearce, who is the 
Executive Director of the Workers' Rights Institute at 
Georgetown Law, which is located in Washington, DC.
    Our fourth witness is Professor Matthew Mitten, Professor 
of Law and Executive Director of the National Sports Institute 
at Marquette University Law School, which is located in 
Milwaukie, Wisconsin. We thank all of the witnesses for being 
here today, and we look forward to your testimony.
    Pursuant to Committee rules, we would ask that you would 
each limit your oral presentation to a 5-minute summary of your 
written statement, and I would also like to remind the 
witnesses to be aware of the responsibility to provide accurate 
information to the Subcommittee. Now I will recognize Ms. 
Bodensteiner, for 5 minutes.

STATEMENT OF MS. JILL BODENSTEINER, VICE PRESIDENT AND DIRECTOR 
    OF ATHLETICS, SAINT JOSEPH'S UNIVERSITY, PHILADELPHIA, 
                          PENNSYLVANIA

    Ms. Bodensteiner. Good morning, Chairman and Ranking 
Members. Thank you so much for the opportunity to testify here 
today. My name is Jill Bodensteiner, and I serve as the 
Athletic Director at Saint Joseph's University, Philadelphia. 
We are a Division I non-football institution, and a member of 
the Atlantic Ten Conference.
    In my previous career I practiced employment law for 15 
years. Before I talk about unions, I want to acknowledge that 
the NCAA and its members have to continue to reimagine college 
athletics, including the provision of additional resources to 
some student-athletes. President Baker's recent proposal 
signals the need and the willingness to do exactly that.
    I also want to acknowledge that I come from a labor 
background, and I am excited about the resurgence of the labor 
movement in the United States. That being said, I am convinced 
that the unionization of a handful of college student-athletes 
is not the answer to the significant issues facing college 
sports.
    As a threshold matter, I believe that the NLRB Regional 
Director's decision in Dartmouth was so broad that NCAA 
Division II and III student-athletes, college students who 
participate in non-athletic clubs, and actually high school 
students could be deemed employees. Furthermore, I believe that 
the unionization of some college athletes could actually be 
detrimental, both to those student-athletes, and to college 
athletics as a whole for four primary reasons.
    First, as noted by the NLRB in the Northwestern case, the 
core of college athletics is about competition. It is extremely 
difficult to exist in a competitive environment when teams are 
playing by different rules. It is clear that schools would be 
playing by different rules for the following reasons.
    First, the NLRA does not apply to public institutions. 
Second, the NLRB's Bethany College decision in 2020 would allow 
religiously affiliated institutions of higher education to 
assert that they are not subject to the jurisdiction of the 
NLRA. As has become evident since the 2016 Columbia decision, 
just because students can unionize does not mean that they 
will.
    Second, several legal considerations could lead to 
confusing results for student-athletes and college athletics as 
a whole. For example, the influence of politics on the NLRB 
means that the classification of student-athletes as employees 
literally could flip back and forth every 4 years.
    Also, because each law has its own definition of employee, 
and is adjudicated in different ways, we also have the real 
possibility that student-athletes at some institutions could be 
deemed employees under the NLRA, not employees under the Fair 
Labor Standards Act, and may or may not be employees under the 
state's work comp law.
    Finally different bargain units, say for example men's 
basketball and the woman's basketball bargaining unit could 
negotiate different benefits which an institution might be 
unable to provide due to Title IX.
    Third, there are several issues that could limit the 
benefits of a union at best, and at worst may be even 
detrimental to student-athletes. For example, the limited 
ability to negotiate compensation because such negotiated 
outcome would have to comply with current NCAA and potentially 
Conference rules.
    Next, right now student-athletes receive extensive 
financial aid that is not currently taxed. Shifting to wages 
would subject them to Federal, State and even local taxes. 
Also, a transition from the current comprehensive medical 
treatment and insurance model to a State work comp, I believe 
would be detrimental to the student-athletes.
    Finally, the likely inability of international student-
athletes to fully compete as employees would be detrimental to 
that group. Fourth, college athletics as it currently exists is 
not structured with the expectation that student-athletes would 
be employees. The transition to a student-athlete workforce 
could reduce the number of NCAA sports sponsored by 
institutions.
    NCAA rules require institutions to sponsor a minimum number 
of sports to compete at the Division I level. Many of us, 
including Saint Joe's, exceed that number so that we can offer 
all of the benefits of college athletics to more student-
athletes. These additional sports generally do not generate 
revenue. If Division I schools are required to deploy the 
resources necessary to support an athlete workforce, for 
example, at Saint Joe's we have 480 student-athletes, there 
could be many fewer opportunities for student-athletes to 
participate in college athletics at all.
    In sum, I believe that the limited benefits that unions 
could potentially gain for a small group of student-athletes 
throughout the United States would not outweigh the 
considerable negative impact it could have on student-athletes 
and college athletics as a whole. On behalf of my peer 
institutions and all of our student-athletes, I want to offer 
my appreciation to the members of this Committee for your 
consideration of these important issues. Thank you.
    [The Statement of Ms. Bodensteiner follows:]
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Chairman Good. Thank you. I will now recognize Mr. Sims for 
5 minutes.

 STATEMENT OF MR. TYLER SIMS, SHAREHOLDER, LITTLER MENDELSON, 
                         TAMPA, FLORIDA

    Mr. Sims. Chairman Good and Owens, Ranking Members 
DeSaulnier and Wilson, and members of the Subcommittees, I am 
so honored and thankful for the opportunity to speak with you 
today about a topic that is very important and personal to me. 
I am especially humbled to be sitting here with former NLRB 
Chairman Mark Pearce, who in the Northwestern decision declined 
to exercise jurisdiction over student-athletes, which I 
actually wrote about in law school.
    I am grateful to be here, to be able to tell you my story. 
My wife Casey and I are former Division I athletes. She was a 
field hockey player at Towson University, and I played goalie 
for the men's ice hockey team at Providence College. Frankly, I 
would not be sitting here today without that experience as a 
student-athlete.
    That experience was just as impactful and critical to my 
personal growth, my success in law school, and in my career as 
a lawyer, as was the rigorous academic course load I took at 
Providence. Some of the many lessons I learned as a student-
athlete include the value of hard work, discipline, teamwork, 
multitasking, performing under pressure, and taking 
constructive feedback from coaches, even when I did not want to 
hear it.
    Before going to law school, I tried to follow in my 
father's footsteps to the NHL. I played professional hockey for 
3 years in the minor leagues for nine different teams in three 
different leagues, and was a member of the union called the 
Professional Hockey Players Association.
    I appreciated the PHPA as professional, and I saw value in 
union representation at the professional sports level. The 
student-athlete learning experiences over 4 years are 
fundamentally different, though, than the experiences I had as 
a professional athlete. In fact, it is those experiences that 
helped me become a professional athlete, and deal with the 
pressures and realities of professional sports.
    I think the educational piece of playing a college sport is 
often lost in the discussion about whether student-athletes 
should be considered employees. I believe Chairman Pearce, and 
the rest of the unanimous board members got it right in the 
Northwestern case. These are some of the reasons why I do not 
believe that student-athletes should be classified as employees 
under the National Labor Relations Act.
    Any wages and other compensation paid to student-athletes 
would be taxed. What about our scholarships that are currently 
tax free? The tax code exempts athletic scholarships but does 
not exempt scholarships when paid in exchange for services, 
like teaching for example. Will student-athletes also have to 
pay taxes on scholarships?
    In a typical workplace, or in professional sports, 
employees must perform well, or they risk losing their jobs, 
which is what happened to me a number of times playing 
professional hockey. Could my tenure with the school be 
terminated at any time if I was not playing well? Would I have 
time to work through it and try to improve?
    What if the school did not agree to our demands, and the 
union called us out on strike? An employer is not required to 
play employees on strike. Could I still go to class? Would I 
have to pay out of pocket for my tuition? How would that affect 
both my academic and athletic career? At Providence I wanted to 
become a better hockey player, not only to help my team win, 
but to try to make it to the NHL, so I voluntarily put in extra 
time on the ice and in the weight room.
    Under a collective bargaining agreement, would that be 
considered overtime? Would the school let me work overtime? 
What about time spent on academics? While we had to maintain a 
certain GPA, I wanted to excel in school. Would academics be a 
term of employment, and a mandatory subject of bargaining? I 
also valued talking directly with my coaches. They taught me 
about life, not just hockey.
    If I had a problem with my coach taking me out of a game, 
could I work it out with my coach directly, or would I have to 
go to the union show steward and file a grievance? What if the 
cost of fielding an NCAA sport became more expensive for our 
school? Would my sport be cut? What about others? What if I 
want to transfer? How do I do that under a CBA?
    Do I have to be bound by a CBA if I do not want it, or if I 
never voted for it? It is not that unions are good or bad, it 
is the setting here that is the problem. I needed to learn and 
grow as a student-athlete. I did not need to worry about things 
like bargaining with the school, or any of the other issues I 
mentioned.
    I have been thrilled to see the positive changes that 
student-athletes have received over the last 10 years, and I 
encourage student-athletes to continue to speak up for 
themselves and their teammates. However, I also value the 
educational purpose behind college athletics. For all the 
reasons I mentioned, and those in my written testimony, I do 
not believe that classifying student-athletes as employees 
under the National Labor Relations Act will be a positive 
change for student-athletes.
    Again, I really appreciate the opportunity to discuss this 
important issue with you. I am happy to respond to any 
questions.
    [The Statement of Mr. Sims follows:]
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Good. Thank you. We will now recognize Mr. Pearce 
for 5 minutes.

   STATEMENT OF MR. MARK GASTON PEARCE, PROFESSOR OF LAW AND 
EXECUTIVE DIRECTOR, WORKERS' RIGHTS INSTITUTE, GEORGETOWN LAW, 
                        WASHINGTON, D.C.

    Mr. Pearce. Chairman Good, Ranking Members DeSaulnier and 
Wilson, and members of the Subcommittee, thank you for the 
opportunity to testify before you today. I was Chair of the 
National Labor Relations Board as you know, and it makes me 
feel kind of old to hear about somebody in law school reading 
my decisions.
    In 2023, NCAA recorded nearly 1.3 billion in revenues. 
Since its creation in 1906, the NCAA has barred collegiate 
athletes from receiving compensation for their labor. Until 
recently, athletes were even barred from monetizing their 
names, image, and likeness.
    Despite the NCAA's record of legal success, trends seem to 
be increasingly turned toward defining college athletes in a 
different way. Last year, legendary Alabama football coach Nick 
Saban endorsed the college football players unionizing. This is 
a rapid changing area of the law, and while I am happy to share 
my opinion today, I want to clarify that though people still 
call me Chairman, I do not speak for the NLRB, or the Biden 
administration.
    The term ``student-athlete'' was coined by the NCAA's 
President and legal team in 1950, as part of a legal strategy 
designed to avoid paying a worker's compensation claim to the 
widow of a football player who died after an injury sustained 
in a game.
    The term persists in NCAA and university legal strategies 
to perpetuate the myth of purity of amateurism. The reality is 
that most college athletes struggle to make ends meet. They 
never make it to the professional level and are left with 
little or no benefits from those playing days. Many are 
academically deprived.
    Graduation rates are lower among student-athletes of color 
than their white counterparts. Just over 55 percent of black 
male college athletes graduated within 6 years compared with 60 
percent of all black undergraduates. 69 percent of all college 
athletes graduate within 6 years compared to 76 percent of all 
undergraduate students.
    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 pockets.
    On June 21, 2021, the Supreme Court decided NCAA v. Alston, 
holding that the NCAA's rules restrict certain educational 
related benefits from college athletes. Those restrictions 
violate Federal antitrust laws. Now schools may offer these 
types of benefits to their athletes, though they are still not 
allowed to compensate athletes directly.
    On February 5th, the NLRB Regional Director held that 
Dartmouth men's basketball players are employees under the 
National Labor Relations Act, and 1 month later those 
basketball players overwhelmingly voted to unionize, and join 
many other student workers at Dartmouth, already unionized, and 
represented by the same union.
    Although the path forward is unclear, the status quo simply 
cannot persist, and it will not. The NCAA is reading the 
writing on the wall, so much so that in December of last year, 
its President, Charlie Baker, sent a letter to Division I 
members proposing the creation of a new subdivision whose 
schools would be required to provide significantly greater 
compensation for their athletes than current associations 
allow.
    Current conditions are unsustainable and unjust. It is 
worth considering the ideal process through which--to address 
the challenges facing college athletes. A collective bargaining 
relationship could be the most effective means of doing so, as 
opposed to the adversarial approach, collective bargaining 
ensures athletes have a seat at the table.
    As Justice Kavanaugh alluded, this approach has promise in 
creating more just and workable outcomes. I welcome your 
questions.
    [The Statement of Mr. Pearce follows:]
 
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    Chairman Good. Thank you. We will now hear from Mr. Mitten, 
Professor Mitten, for 5 minutes.

STATEMENT OF MR. MATTHEW MITTEN, PROFESSOR OF LAW AND EXECUTIVE 
 DIRECTOR, NATIONAL SPORTS LAW INSTITUTE, MARQUETTE UNIVERSITY 
                LAW SCHOOL, MILWAUKEE, WISCONSIN

    Mr. Mitten. Thank you. Good morning, Chairmen and Ranking 
Members and other Subcommittee members. It is an honor and a 
pleasure to testify before you today. For 35 years as a law 
professor, I have been studying and writing books and articles 
about a wide variety of college sports legal issues.
    Since 1906, based on a uniquely American amateur education 
model embodying President Theodore Roosevelt's philosophy that 
intercollegiate sports should be first-class, healthful play, a 
means in life, and organized to permit the largest possible 
number of students the chance to take part.
    NCAA educational institutions have provided over 5 million 
educational and athletic participation opportunities to female 
and male students from all socioeconomic backgrounds in a 
variety of sports.
    From 1906 until the present, intercollegiate athletes have 
been full-time students participating in a variety of sports as 
extracurricular activities at NCAA colleges and universities. 
They currently have higher graduation rates than their non-
athlete student peers. The NCAA's almost 1,100-member 
nonprofit, public and private colleges and universities, are 
organized into three divisions based on the philosophy and 
competitiveness of their respective athletic programs.
    In 2023, NCAA member institutions sponsored more than 
20,000 intercollegiate men's and women's teams and 36 
championship and emerging sports. Most do not generate 
sufficient revenues to pay their costs. Student-athletes who 
voluntarily choose to play college sports have a contract with 
their schools establishing both sides' legal rights and 
obligations.
    Applicable NCAA divisional and athletic conference rules 
are incorporated into and are terms and conditions of the 
intercollegiate sports participation contract between a 
student-athlete and their college and university. All NCAA 
intercollegiate athletes are required to be full-time students, 
in good academic standing, and maintain satisfactory progress 
toward earning a bachelor's degree.
    A 2022 NCAA Constitution retains the Association's 
historical, amateur educational model of college sports by 
prohibiting pay for play, while permitting student-athletes to 
receive educational and other benefits in accordance with 
guidelines established by their NCAA division.
    State legislatures and courts have refused to characterize 
the contract between either a private or public educational 
institution as an employment contract for purposes of worker's 
comp insurance coverage. Federal appellate courts have rejected 
assertions that college athletes are university employees, or 
that athletic conferences, or the NCAA, or their joint 
employers under the Federal Fair Labor Standards Act.
    In 2015, the National Labor Relations Board rejected a 
petition to unionize Northwestern University football 
scholarship players because it would not further stable 
relations. The Board has no jurisdiction over intercollegiate 
sports at public universities, which must comply with State 
labor laws, and may not allow student-athletes to unionize.
    Since 2015, NCAA rules changes have been beneficial, not 
detrimental to intercollegiate athletes. The 2022 NCAA 
Constitution permits fair market value pay for publicity from 
the commercialization of college athletes NIL rates. Student-
athletes currently have greater rights and protections, 
including Constitutional commitments by the Association 
Division's Athletic Conferences, and member institutions to 
protect, support and enhance student-athlete physical and 
mental health and safety, and to conduct their activities 
without gender discrimination.
    Student-athletes also have voting representatives from the 
NCAA Board of Governors and highest divisional governing 
bodies. Recharacterizing college athletes as employees in 2024, 
118 years after the NCAA's founding, threatens to destroy the 
historically very successful model of intercollegiate sports, 
and raises numerous complex and unprecedented Federal labor law 
issues, as well as potential and actual conflicts with other 
Federal laws, such as the Fair Labor Standards Act, and Title 
IX.
    It could result in less favorable treatment of student-
athletes, including their being fired for unsatisfactory sports 
performance, more restrictive limits on their earning capacity, 
or ability to transfer schools. My concern is that permitting 
college athletes to unionize will significantly increase their 
cost, and an undesirable consequence will be elimination of 
numerous intercollegiate sports teams, particularly non-revenue 
generating Olympic and women's teams, or their downgrading to 
club sports.
    Thank you for considering my testimony, and I welcome your 
questions.
    [The Statement of Mr. Mitten follows:]
    
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    Chairman Good. Thank you, Professor Mitten. Under Committee 
Rule 9, we will now question witnesses under the 5-minute rule. 
I will wait to ask my questions, and therefore I recognize the 
Chairman of the Higher Educational Workforce Development 
Subcommittee, Mr. Owens from Utah, for 5 minutes.
    Mr. Owens. Thank you. Thank you so much. Ms. Bodensteiner, 
most of the student-athletes will never compete professionally 
in their sport. In fact, only 1.6 percent of NCAA football 
players ever play in NFL. What impact would employee status 
have ensuring these college student-athletes can continue to 
focus first and foremost on being students, and on their 
academic success?
    Ms. Bodensteiner. Thank you for your question. I first want 
to say that I think it is important to understand the diversity 
within college athletics, and a lot of the statements we have 
heard pertain primarily to football. I am a non-football 
institution. Contrary to bringing in, making a profit, we are 
80 percent subsidized by the University in our athletic 
department.
    This is not a money-making enterprise at most institutions 
without football certainly, including Saint Joe's. At Saint 
Joe's, our student-athletes graduate at a higher rate than our 
regular students, and our student-athletes of color graduate at 
a higher rate than our non-student-athletes of color.
    I am really proud, as with Dartmouth, in how we do put 
academics first. There are a myriad of ways in which we do so. 
I think one, in response to your question, one fundamental 
issue is would academic matters be subject to bargaining? Some 
of the academic support offered, and you know eligibility 
rules, those sort of things.
    What would, you know, what is the play between collective 
bargaining and mandatory subjects of bargaining, versus 
academic matters like study hall and extra tutoring, and all 
those sort of things. Frankly, I think the answer to the 
question of what would change has a lot of to do with the 
current engagement of both the institution and the student-
athlete.
    At Dartmouth, it is academic first in every sense of the 
word, and I think we would try and remain for it to be that way 
at Dartmouth and at Saint Joe's, but being employees 
fundamentally changes the nature of that relationship.
    Mr. Owens. I think somebody mentioned earlier every college 
would have to address this differently. Am I correct?
    Ms. Bodensteiner. Absolutely.
    Mr. Owens. Okay.
    Ms. Bodensteiner. We all have different academic 
structures.
    Mr. Owens. Mr. Sims, like other college student-athletes, 
must satisfy certain academic standards to gain admission to 
the universities and participate in extracurricular activities, 
including sports, there are no academic or educational 
requirements for professional athletes.
    If student-athletes are deemed to be employees by the NLRB, 
would university administrators, and can they be obligated to 
negotiate such academic standards with labor unions?
    Mr. Sims. Yes. I think that is an--Chairman, I really 
appreciate your question. Thank you so much. I really think 
that is an unanswered question at this point. As my colleague 
stated here whether academics would be a mandatory subject of 
bargaining is something that we do not really know at this 
point.
    Would student-athletes, for example, want to have less 
class time, so they could focus more on sports? We do not know 
those answers, and frankly, it would fundamentally change the 
thought process of the student-athlete, because they would be 
focused more, in my opinion, on compensation, and how much 
money they are going to make, as opposed to making sure they 
get to class, having class requirements.
    I remember when I was at Providence, I would get--we would 
have check-ins, our coaches would come to class and make sure 
that we were there. Would that all change? The answer is we do 
not know.
    Mr. Owens. Okay. Very good. Professor Mitten, your 
testimony provides a historical perspective on American college 
athletics. It recounts that college athletes are designed to be 
a vital part of the educational system with athletes as an 
integral part of the student body. This is unique to America.
    Can you discuss the educational athletic opportunities this 
system has provided for our young Americans?
    Mr. Mitten. Yes. As I mentioned, there has been, I think it 
is 5.15 million student-athletes that have had an opportunity 
to participate in the sport that they love to get either, you 
know, debt free or low-cost college education, depending upon 
the divisional level.
    Those educational benefits extend beyond just playing a 
sport. For example, I have been on the Law School Admissions 
Committee at a couple different law schools, including my 
current one at Marquette. I can tell you when I see 
applications from former intercollegiate athletes, that is a 
very big plus factor for me because of the, you know, learning, 
teamwork, cooperation.
    Not every day is going to go great. The discipline, time 
management skills I think is absolutely critical on that. For 
me, I have seen it, even though I did not have the good fortune 
to be an intercollegiate athlete, the benefits, educational 
benefits that extend after the student-athlete has stopped 
playing their sport.
    Mr. Owens. Thank you. I yield back.
    Chairman Good. Thank you. We will now recognize Ranking 
Member--I will now recognize Mr. Courtney from Connecticut for 
5 minutes.
    Mr. Courtney. Thank you, Mr. Chairman, and thank you to all 
the witnesses for your very thoughtful comments. I think this 
is really a helpful exercise to sort of tease out, again a lot 
of the issues. Mr. Pearce, you know when you were Chairman of 
the NLRB, you were there when the Columbia University decision 
was handed down that recognized the right of teaching 
assistants to organize and unionize.
    I have been around in Congress for a little while, and this 
certainly has echoes of the same sort of arguments, or the 
echoes of the arguments against it, sound familiar today in 
terms of just that, you know, these are people who are getting 
all kinds of other benefits in their life journey, and that 
they really do not belong to be in a category recognized by the 
NLRB.
    I was wondering if you could just sort of tease out a 
little bit more about the fact that the world did not come to 
an end when NLRB recognized a right to organize, and that 
universities benefited to them probably more than it cost 
universities.
    That sort of seems very analogous to the situation we are 
discussing today.
    Mr. Pearce. You are absolutely right. Thank you for that 
question. The Columbia decision demonstrated most emphatically 
that the quest for a degree as a student is distinguished from 
the obligations and the benefits to the school that are gained 
through the employment of these students as employees.
    Employees have to do work. In this situation, the work of 
the college athletes will be playing the sport. The questions 
related to whether or not the academics will be imposed upon is 
not exactly on point given the fact that the athlete's job will 
be playing the sport, and the athlete's activity relative to 
his or her degree is being a student. What we learned in 
Columbia was that the functioning of students as employees 
works very well, and what was instructive in that regard was 
the public sector where students had been employees for decades 
before the Columbia decision had started, and they have 
functioned very well.
    In fact, their abilities have been enhanced as a result of 
the security that they get.
    Mr. Courtney. Great. Thank you for that answer. One thing 
that I think is important for everyone to also consider is that 
recognizing the right to unionize does not mean that everybody 
is going to unionize. I mean we know that only about 10 percent 
of the private sector in this country, probably less is 
unionized, even though people have the right to unionize.
    Public support for unions, by the way, is at a near record 
high. That just demonstrates that you know, that does not 
necessarily translate into automatic union formation that is 
there. In the case of Dartmouth, where they do not get 
scholarships. The kids--they do not get scholarships, so for 
them the issue of whether they are going to get taxed or just 
whatever, was a nonissue.
    They had other issues, which were I think very legitimate 
in terms of the fact that they were paying out-of-pocket health 
costs for injuries which, you know, they incurred as athletes. 
Again, these--I represent University of Connecticut. We have a 
lot of ACL injuries for our basketball players which are in 
some cases, permanent disabilities. That is not an 
insignificant concern that the students at Dartmouth have.
    By the way, Mr. Chairman, I would like to add to the record 
a letter from two of the athletes explaining why we are 
unionizing, which I think is a very thoughtful piece. I mean 
they are big boys and big girls, they can kind of think through 
these issues about whether a union worked for them.
    Chairman Good. Without objection.
    [The information of Mr. Courtney follows:]
   
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    Mr. Courtney. Again, particularly in the area of just you 
know, health and safety that may be enough for people to decide 
they want a union, maybe in other instances it will not, and 
that is the way the NLRB works. It is not automatic. You have 
got to still go out and hold an election. Is that correct?
    Mr. Pearce. That is absolutely correct.
    Mr. Courtney. Well, thank you. The one consensus item was 
we heard from Ms. Bodensteiner that we need to reimagine 
college athletics. Mr. Pearce says the status quo is not 
sustainable. I mean we have got to come up with a better plan. 
I think the right to unionize would provide some external 
pressure to force colleges and universities to think and 
reimagine how we treat student-athletes, and with that I yield 
back.
    Chairman Good. Thank you. We will now recognize Mr. Walberg 
from Michigan for 5 minutes.
    Mr. Walberg. Thank you, Mr. Chairman, and thanks to the 
panel for being here. This is an important subject. Just last 
week, I read the comments of great coach Nick Saban, shortly 
after his loss to national champion undefeated University of 
Michigan Wolverines. I do not know if I have ever mentioned 
that before, go Blue.
    It was interesting as he talked about the reason he had 
decided to retire. It was not because he lost to Michigan. It 
was because some of these athletes were coming in immediately 
after that looking to next season and asking him what was in it 
for them. Basically, what contracts they would have? What 
earning capabilities they would have?
    Nick Saban, I think rightly, said to himself this is a new 
world. It is not for me. This is not what athletics is all 
about. As an athlete, a wrestler, it prepared me for life, but 
it was not life. It prepared discipline and character qualities 
and all of the rest. Now, to talk about NIL and unionization 
and all of the rest, I think unionization is a responsible 
thing for their adult lives.
    The learning process could be a great hindrance, and I 
think Nick Saban saw much of that. When we think about the 
impact that athletics has on students, the number of 
international athletes that are now competing for the same spot 
on teams sharply increased. College athletics serve many 
purposes, highlight women's sports, support local communities, 
and is an important pillar to the Olympics, very important.
    The consequences that we are talking about today are 
troubling the impact it could have. Mr. Sims, the NLRB regional 
director's decision in the Dartmouth case has consequences to 
come, and you have expressed some of them. My district in 
Michigan is home to Adrian College, Albion College, Spring 
Arbor University, and it could go on with several others, who 
compete as private Division III schools with athletic programs.
    Significant--Adrian College's significant hockey program. 
If the Dartmouth decision is upheld, what do you believe will 
happen to other private colleges in Division I, II, III, with 
their intercollegiate sports?
    Mr. Sims. Thank you for your question. I appreciate it. I 
do believe that if student-athletes are classified as employees 
and the Dartmouth decision is upheld, I think it could really 
change the competitive balance in college sports. You are 
dealing with about a third of universities that are private in 
the NCAA, so you have about two-thirds that are public 
universities.
    There are many states around the country that do not allow 
public employees to collective bargain. There is also states 
like yours in Michigan who have specifically carved out 
student-athletes as not employees, public employees, so I think 
about the competitive imbalance that could result from it when 
you look at all the sports leagues, for example.
    Those are league wide bargaining units. The NLRB's history 
in issuing decisions around sports leagues have been about 
league wide bargaining units. It is something that was even 
mentioned in the Northwestern decision that a single team 
bargaining unit is something that would be difficult to 
imagine, and it would not stabilize labor relations around the 
country.
    Mr. Walberg. Thank you. Ms. Bodensteiner, most universities 
do not generate a profit from their athletic programs, as you 
have indicated. In fact, we have seen schools over the past 
several years drop programs. A few years ago, Michigan State 
University, of all places, dropped its men's and women's 
swimming program. Lindenwood University in Missouri recently 
announced it would cut ten programs.
    If the Dartmouth case is upheld, what would the financial 
impact be on college athletics programs and their long-term 
viability for the majority of schools?
    Ms. Bodensteiner. Thank you for the question. I do believe 
that the infrastructure required to have, for example, 480 
Saint Joe's student-athletes treated as employees, and 
depending on the scope of that, we could be talking tracking 
hours, timecards, hiring, firing, posting positions, 
negotiating potentially with 21 different bargaining units.
    The infrastructure alone to support a student-athlete 
workforce would be incredibly expensive, and I believe schools 
would have very difficult decisions to make.
    Mr. Walberg. Okay. Thank you, my time has expired. I yield 
back.
    Chairman Good. We will now recognize Ms. Bonamici from 
Oregon for 5 minutes.
    Ms. Bonamici. Thank you, Mr. Chairman, and thank you to the 
witnesses. I represent a district in a very labor and worker 
friendly State. I am a strong supporter of collective 
bargaining for fair and just compensation, benefits, and 
working conditions. I do want to note that my State, just a 
couple weeks ago, passed legislation prohibiting the NCAA 
athletic conferences, or other athletic governing bodies, from 
punishing schools and student-athletes for violating the name, 
image, likeness rules, although they also added athletic 
reputation.
    I think these conversations are happening across the 
country. College and university athletics, as we know, generate 
billions of dollars for the NCAA, but most students do not see 
much beyond scholarships that may or may not cover the cost of 
their education.
    As directed by athletic departments, student-athletes 
invest substantial time in practices, workouts, travel, games, 
some of which come at the expense of--I see you are shaking 
your head, Mr. Sims, and bringing back memories, right--may 
come at the expense of attending classes.
    Despite this, student-athletes are supposed to be 
considered student-athletes, or students first, athletes 
second. Thank you, Mr. Pearce, for giving us a little history 
about where that came from. Even as the NCAA and the schools 
they attend continue to profit. Studies in recent years have 
found that anywhere from 25 to 60 percent of Division I 
student-athletes have experienced food insecurity.
    Even greater numbers of these students have lived below the 
Federal poverty line, or continue to do so, so it is no wonder 
that some student-athletes are choosing to unionize to get the 
rights and benefits they deserve, and I say choosing, because 
as Mr. Courtney pointed out, this is a choice. There is an 
election.
    Mr. Pearce, the NCAA and its respective divisions have 
shown that they are not capable of addressing every issue of 
concern regarding college athletes in a timely manner. They are 
also unable to produce an individualized solution in every 
case. What are the advantages of an athlete's union over the 
NCAA and division committees trying to resolve particular 
issues?
    Mr. Pearce. Thank you so much for that question. The 
ability for students to unionize gives the students a seat at 
the table in real time. A union who knows the concerns of the 
particular athletes, and the priorities that the athletes have 
with respect to equities and injustices, can bring that forward 
in a collaborative way with the university, so that the best 
solutions can be hashed out mutually, rather than some kind of 
top down approach to say well, we are going to try this, we are 
going to try that, and it may not necessarily work.
    The importance is that the students need a sense of better 
work-life balance. They know how it is imbalanced, and they can 
address it most effectively in collective bargaining.
    Ms. Bonamici. In other words, the student-athletes' voices 
are very important no doubt.
    Mr. Pearce. Very much.
    Ms. Bonamici. We have heard a lot of talk about that, and 
again, as Mr. Courtney pointed out, that happened at Dartmouth. 
The students stepped up and made that decision. How would 
joining a union, or forming a union be one of the most direct 
and effective ways for students to have their voices heard, Mr. 
Pearce?
    Mr. Pearce. Well, there is an obligation to collectively 
bargain. The employee status of athletes gives them the 
opportunity to have that seat at the table that I addressed 
before. A collective bargaining agreement would have particular 
provisions that deal with safeguards like safety, how much it 
would affect your study to have to go through the rigors of 
sports training and so forth.
    Negotiate whether or not they have to fly around across 
continents in order to play within the leagues for their games, 
and then have to come back with jet lag and try to study. Those 
are kind of items that they would be able to negotiate.
    Ms. Bonamici. No. I appreciate that. Mr. Pearce, one final 
question, some are suggesting that allowing students to --
student-athletes to unionize, not requiring, allowing them to 
make that decision and have an election, would be the end of 
college athletics as we know it. Do you agree with that?
    Mr. Pearce. I do not. Absolutely not because, as we can 
see, all of the professional sports teams have been able to 
function and make certain adjustments. Each school has its own 
unique set of circumstance. Each athlete who decides to 
unionize can only unionize if the factors exist based on the 
NLRB's assessments. It is not going to be one size fits all at 
all.
    Ms. Bonamici. Thank you, and I yield back. Thank you, Mr. 
Chairman.
    Chairman Good. Thank you. We will now recognize Mr. Allen 
from Georgia for 5 minutes.
    Mr. Allen. Thank you, Mr. Chairman. I am pleased that we 
are holding a hearing today on this important topic. I believe 
the American people deserve choice, and that includes someone 
who is looking beyond high school. We talked about higher 
education quite a bit here in this Committee over the last few 
months. A lot of things going on in college that--and some 
folks might want to go directly into the workplace, or go get a 
skill, those kinds of things.
    There are all kinds of options available today beyond high 
school. When it comes--we are talking about athletics here 
today, but there are lots of other ways to go to college. You 
know, academic scholarships, there are--certain corporations 
give scholarships because people have certain abilities.
    I played football and all the sports in high school, but my 
great talent was a long snapper, and I probably could have 
walked on as a long snapper, but not as a scholarship player. I 
had a trade I learned how to weld in high school, and I used 
that trade to pretty much work my way through college.
    That was kind of my choice. There are all kinds of choices 
out there and as far as trying to unionize, I do not think--if 
you unionize you have got one choice, and everybody makes the 
same amount of money. I do not know how you do that because you 
take the NIL. The quarterbacks are making a million, and I do 
not know the linemen are not making that kind of money. I 
worked in a union company, and if you had this level of skill 
everybody made the same amount of money.
    Talking about name, image and likeness, this is what has 
captivated this whole conversation, and now Biden's National 
Labor Relations Board has gotten onboard, and said hey, this is 
an opportunity to expand its authority, and force student-
athletes into employee status and unionization, which really 
will only serve to restrict student freedom, and their ability 
to choose exactly what's the right course for them.
    Frankly, the very purpose they are there could lower their 
educational standards. Because as my friend Burgess Owens said, 
only 1 percent, 1 point something percent of these folks go to 
the next level, so that education then becomes very valuable. 
That is why I am interested in legislation that would ensure 
that both football and basketball players in this country are 
eligible for the draft directly out of high school.
    The athletes coming out of high school today are not the 
athletes that came out of high school when I was there. A lot 
of those folks are ready. I mean they are ready to play in the 
big leagues, and ready to go make--to really be rewarded for 
their hard work.
    Currently, some athletes are playing college sports for 
financial reasons, as illustrated by Coach Saban. As pro sports 
collective bargaining agreements though restrict their entering 
into the free market, and so nullifying these rules would 
empower athletes to make their own decisions about their--
    (microphone cut out).
    Ms. Bodensteiner. The most popular question I am asked at 
cocktail parties is why does the NCAA have a one and done rule 
in basketball, and a 3-year rule? People do not understand 
those are not NCAA rules, they are collectively bargained. It 
is great for the owners because they get to see how athletes 
perform at the college level before they invest money and draft 
them.
    Those collective bargaining agreements, particularly in the 
NFL--basketball is getting better with G league and other 
options--they have collectively bargained football, high school 
student-athletes into one choice only, and that is to attend 
college, whether they have any interest in getting an education 
or not.
    The fact that college athletics is a free minor league for 
the National Football League, I mean kudos to the NFL for 
pulling it off, but it is put college athletics in a very, very 
difficult position.
    Mr. Allen. The question here, and I am out of time, but the 
question here is do you go to college to get an education, or 
do you go to college to further your athletic career?
    Ms. Bodensteiner. I think most student-athletes go to 
college to get an education, but there is no choice. If you 
want to be a pro football player, you have to go to college, 
whether you want the education or not.
    Mr. Allen. I believe those students should have the 
opportunity to go directly to football, and if they want to go 
back to college later on they can do that.
    Ms. Bodensteiner. Absolutely. Just as baseball and hockey 
players do.
    Mr. Allen. Exactly. Thank you.
    Chairman Good. Thank you. We will now recognize Mr. Takano 
from California for 5 minutes.
    Mr. Takano. Is it Ms. Bodensteiner? You would be open to 
the idea of separating the idea of collegiate education from 
public spectacle, the responsibility to provide public 
spectacle to the money that accrues from high stakes athletics 
where we have created this nexus between universities, and you 
know high stakes athletic competition.
    In your view there is not necessarily a nexus, or does 
there need to be one?
    Ms. Bodensteiner. I think that there is an unfortunate 
decision that high school football athletes have to make if 
they want to go to the NFL, just as many individuals can leave 
high school and enter a trade, and do so freely, I think high 
school football players are put in a very difficult situation 
that they have to go to college as their opportunity to get to 
the NFL.
    Mr. Takano. Of course, there are risks that accrue to the 
collegiate athlete who misses out on an education. That is a 
whole other discussion about whether they should be unionized 
or not, but could we not draw a distinction between schools 
like yours which subsidize all of the athletic programs, versus 
those schools where athletics, basketball or football is a high 
revenue maker. I mean it subsidizes not only athletics, but one 
could even say it subsidizes many other parts of the university 
operation.
    Ms. Bodensteiner. There are significant differences, and 
that is yes, there are significant differences.
    Mr. Takano. We ought to be talking on two different planes 
here. Mr. Pearce, much of what you have written about I think 
applies to the idea that collegiate athletes, many of them 
minorities, racial minorities, provide a great amount of value, 
value as you said is extracted from them.
    They do not necessarily benefit from the value extracted. 
In fact, is it not the case in many schools' coaches make more 
money than the university President?
    Mr. Pearce. That is very true. Yes.
    Mr. Takano. Can you give us an idea what those salaries 
are? Do you have that off the top of your head?
    Mr. Pearce. Oh. Not off the top of my head, but if I were 
to say 5 million dollars for a coach's salary, I would not be 
off base.
    Mr. Takano. I think the American people, if they were to 
look squarely at the amount of revenue they generate for the 
coach's salary, the amount of revenue they generate for maybe 
subsidizing the other athletic programs, but not just that, but 
the dependency of many universities on the athletic program to 
subsidize many of their other operations, maybe even the 
research that goes on there.
    That there is something out of whack there that the 
students, the athletes themselves generate this revenue, but 
what can we say they get in return? Can you comment more on 
this sort of imbalance?
    Mr. Pearce. Well, the imbalance is substantial. Athletes 
are not getting their returns, and the athletes of color who 
are playing football and basketball in the powerhouse schools 
are through their services, producing so much revenue for the 
school that the school is being benefited in other areas that 
are not profit making.
    The basketball team is in many cases supporting the hockey 
team, or the tennis team, or the swimming team. A lot of the 
activities that is being subsidized, is subsidized on the backs 
of these players.
    Mr. Takano. It could even be said that the educational 
scholarships allow those other athletes to get an education, 
are actually being, it is being won off the backs on the hard 
work, the daily training that the athletes in the high revenue 
sports provide?
    Mr. Pearce. That is correct.
    Mr. Takano. This whole idea that a seat at the table in 
real time. The NCAA has rules about how many hours an athlete 
can work during the term time, and off term time. Are those 
rules often not adhered to and violated do you think?
    Mr. Pearce. They are substantially not adhered to, and 
significantly violated. Testimony by USC players and former 
players talk about 40 to 60 hours a week of----
    Mr. Takano. I only have 30 seconds left, but the high 
stakes nature, the high paid salaries would give incentives to 
kind of not observe those rules--the NCAA rules. Would not 
collective bargaining give the players the wherewithal, and the 
leverage to have those NCAA rules enforced?
    Mr. Pearce. That is correct.
    Mr. Takano. I would further submit that rather than 
speculate whether collective bargaining would violate NCAA 
standards, I would say that collective bargaining has a chance, 
an opportunity to make sure that those standards are actually 
adhered to and enforced, the exact opposite?
    Mr. Pearce. Oh, that is correct.
    Mr. Takano. I yield back, Mr. Chairman.
    Chairman Good. Thank you. We will now recognize Mr. 
Grothman from Wisconsin for 5 minutes.
    Mr. Grothman. I have a question for Mr. Mitten. When we 
think of college sports, we think I guess of Division I 
football, Division I basketball, because that is what is on TV, 
and that is what comes to mind. Just looking at one of the non-
Division I colleges in my district, they have baseball, 
basketball, football, cross-country, swimming, wrestling, 
track, tennis, volleyball, gymnastics, soccer and golf.
    You at Marquette have a big-time basketball program, 
Division I super stuff. How many other sports do they play at 
Marquette other than just Division I basketball?
    Mr. Mitten. I think there is roughly a dozen other sports 
besides men's and women's basketball.
    Mr. Grothman. Okay. Marquette is a big deal on Division I 
basketball. You have got other colleges like Concordia, or U 
Wisconsin-Oshkosh in my district who have no, as far as I know, 
income producing sports. Percentage wise, and if you cannot 
take a stab at this, someone else can.
    What percent of athletes around the country are playing in 
income producing sports?
    Mr. Mitten. Well, we start with there is roughly I think 
it's 525,000 NCAA athletes across all three divisions. The only 
sports that typically generate revenues would be some Division 
I FBS teams. That would be the ones, the autonomy conferences, 
Big Ten, SEC.
    Mr. Grothman. Right. Probably not Central Michigan.
    Mr. Mitten. That is certainly true. Then you have Division 
I men's basketball teams. You do not--of that number, I think 
it is probably less than 20,000 if you add up the number of 
Division I basketball, men's and women's.
    Mr. Grothman. Certainly, well under 5 percent, right?
    Mr. Mitten. Yes.
    Mr. Grothman. Yes. Therefore, if we said student-athletes 
were considered employees, the reason the university world 
fights that is because that would make, well both income, but 
not income producing sports more expensive to operate, right?
    Mr. Mitten. Yes.
    Mr. Grothman. Say at Marquette, the cost of operating, I do 
not know what all sports you have there, but these other 
sports. If you drive up the costs there, and drive up the cost 
for your Division I basketball program, what is the way you 
deal with increased costs? What are universities obviously 
going to do?
    Mr. Mitten. Well, then you are going to look to reduce 
costs, and I think what is likely to happen is the sports--we 
do not want to see a model for example, be just the sports----
    Mr. Grothman. You are going to get rid of sports, are you 
not?
    Mr. Mitten. Yes.
    Mr. Grothman. You are going to get rid of a lot, and that 
is even in Marquette where you have got the big basketball 
team. At Wisconsin at Oshkosh, at Concordia, to name two of the 
universities in my district, who are losing money off the top, 
can you guess wildly--I suppose it is unfair to do this to you, 
guess wildly what sports would disappear? What athletes are 
going to lose the chance to play in sports because either they 
are classified as employees, or even worse, become unionized?
    Mr. Mitten. Well, I would say largely Olympic sport 
athletes, some women's sports, of course Title IX requires that 
there be gender equity in terms of number of sports 
participation opportunities, equal treatment benefit. I think a 
number of sports that are now intercollegiate will be 
downgraded to club sports.
    Mr. Grothman. Tennis, golf, wresting, swimming, that sort 
of thing will become club sports, right?
    Mr. Mitten. I think that is what is most likely to happen.
    Mr. Grothman. Right. The big impact of this on people is a 
lot of athletes in what we call non-income producing sports. I 
hate to use the phrase minor sports, but they just lose that 
opportunity, right?
    Mr. Mitten. I think that is what is most likely.
    Mr. Grothman. Yes. One other comment, and I want one of you 
guys to comment on it. It is my belief right now in smaller 
universities, NEIA or Division III, or whatever, that sometimes 
the universities use these sports--I know they do, and small 
universities, to bring in more tuition revenue.
    In other words, in a way they are taking advantage of the 
kids because they are saying you are going to have this great 
experience here, but they are feeding off of their desire to 
continue their high school career. As the result, maybe they do 
not wind up with something of value because they have been used 
just to get more tuition, get more butts in the seats. Could 
one of you guys comment on that?
    Ms. Bodensteiner. I will take a stab at that. I think first 
of all, you are right to in your questioning, when you think 
about our rowers, our tennis athletes, they are benefiting 
substantially from their opportunity to participate as 
athletes, and I think that is unquestioned.
    The amount of enrollment and money being brought in by 
athletes is changing significantly, as you look at discount 
rates on the rise, and putting athletics aid on top of that. I 
think gone are the days that many schools where their revenue 
or enrollment driver.
    Chairman Good. Thank you. We will now recognize Ms. Adams 
from North Carolina for 5 minutes. Apologies. Ms. Manning from 
North Carolina for 5 minutes.
    Ms. Manning. Thank you very much. Thank you, Mr. Chairman. 
Thank you to our witnesses today. Mr. Pearce, let me start with 
you. I think it is clear that we have differing opinions on 
this Committee, and there are some who believe that the NLRB 
got it right in the Northwestern case when it comes to the 
question of college students unionizing, and that the current 
Dartmouth case is heading in the wrong direction.
    There are others who believe the opposite. Could you talk 
to us a little bit about what has changed since the 
Northwestern case was decided in 2015?
    Mr. Pearce. Thank you so much for that question. I have 
been waiting for that one to be asked. Yes. I was Chair when 
Northwestern was decided. The phrase ``the Board got it right 
with Northwestern,'' is not exactly accurate because the Board 
never addressed the question of whether or not these football 
players at Northwestern were in fact employees.
    What they did was decide the case based on jurisdiction. 
The uniqueness of that circumstance was that Northwestern, a 
Big Ten school, was the only private school within a sea of 
public sector schools in that division.
    It is about having an atmosphere where you can have 
reasonable cooperative and sensible collective bargaining to 
exist. To insert collective bargaining in that atmosphere, 
where the Board, and this was prior to the joint employer 
decisions, and even prior to the Columbia decision where 
students were recognized as employees, was not ready to be able 
to insert themselves into a situation where it may be chaotic 
given the dynamics of a private sector school within the sea of 
public sector schools.
    Things have changed substantially since that time. Those 
decisions that I just mentioned have been decided. The Supreme 
Court has spoken relative to the amount of control that the 
NCAA has over the universities, as well as the students, so a 
question of a joint employer relationship is very real.
    With the Supreme Court saying that the impositions that are 
being made by the NCAA creates antitrust violations, it has 
caused a clearer view of the relationship that student-athletes 
have to their universities vis-a-vis the employer/employee 
relationship.
    Ms. Manning. That decision made in a different context has 
opened up the opportunity for the courts to claim jurisdiction 
in this particular case. I want to move to the issue of 
injuries because we know that college athletes are inherently 
at risk of injury through their participation in sports in 
college.
    The CDC has estimated that over 210,000 injuries occur 
every year with student-athletes with sports like football, 
gymnastics, soccer, wrestling having the highest injury rates. 
My concern is protecting the health and the safety of these 
students. Can you talk to us about what college athletes could 
accomplish collectively in a bargaining agreement, not only to 
help them when they are injured, but to help them if these 
injuries prohibit them from participating in athletics in the 
future.
    Mr. Pearce. You look to football and basketball contracts 
in the professional level where injuries are a significant 
factor in that sport. There are provisions in those collective 
bargaining agreements that protect athletes so that they do not 
lose their ability to continue with their life in a decent way.
    Remember, at the outset of the NCAA's determination that 
students were student-athletes, it was about denying a worker's 
compensation claim to a widow. There had been cases that were 
litigated for years relative to college athletes trying to get 
compensation for the injury that they sustained while servicing 
that school.
    Collective bargaining would provide that kind of security, 
and it would be mutually beneficial to both the university and 
the athletes in the process.
    Ms. Manning. Thank you. My time is about to expire, but I 
am going to get back to you with a question in writing about 
how collective bargaining could prevent students, particularly 
female athletes, from issues involving sexual abuse and rape. 
We have seen it from, not just from coaches, but from 
university doctors.
    There have been some pretty horrific cases, so I will get 
back to with a question in writing. Thank you, and I yield 
back.
    Chairman Good. Thank you. I have been a little generous 
because I started accidentally going over with one of this 
side. We have done it twice on each side. Please remember to 
remind you to keep your remarks and the question time to the 5-
minutes because we have several members to still go with the 
questions. We will now recognize Mr. Burlison from Missouri for 
5 minutes.
    Mr. Burlison. Thank you, Mr. Chairman. This is a strange 
world. I do not know how we got to this point where we are 
considering unionizing college athletes. There is obviously a 
lot of--it creates a lot of problems. Ms. Bodensteiner, is that 
right, it is likely that the terms of a collective bargaining 
agreement between a school and a union representing students, 
student-athletes would be inconsistent with the NCAA rules.
    For example, players could bargain for higher stipends, or 
fewer classes, to remain eligible to participate in collegiate 
sports. The university would be put in a bind whether to 
bargain over subjects that could result in exclusion from the 
NCAA competition. What do you think that the schools should do 
in such a situation?
    Ms. Bodensteiner. I think for some subjects of bargaining, 
absolutely. They could be in conflict. Let us say the topic is 
Sunday's off, and your conference has an NCAA tournament has 
Sunday games, so I think there could be situations where there 
may have to be a collective decision made between the employees 
and the employer to say we could do that, but we would not be 
able to participate, and let us come to some compromise.
    I think there would be many conflicts. Not all. Some things 
would be more gloves, as my softball pitcher, who I brought 
with me today, provision of equipment and those sorts of things 
would not, but certainly many topics would be also the subject 
of conference and NCAA rules.
    Mr. Burlison. I also understand that most of the programs 
at most universities do not generate profits for their athletic 
programs, which is in keeping with what it was intended to be, 
you know, from the beginning. That it is about academic 
performance, academic achievement, athletic achievement, not 
necessarily selling ads and selling tickets.
    Can you discuss how the universities, how this might 
financially impact universities?
    Ms. Bodensteiner. Yes. I mean none of our 21 sports 
generates a profit. A few generate revenue. We do not sell 
tickets to anything other than two sports, and so as I 
mentioned earlier, I think just the costs of having a student-
athlete workforce. We currently have 480 student-athletes at 
Saint Joe's, and just the infrastructure of human resources, 
the bargaining personnel, to manage potentially 21 bargaining 
units and 480 employees would be extensive.
    Costs that I think decision No. 1 would be OK, if there are 
wages now involved, again at institutions like mine, what does 
that do to the financial aid? I think that is where the money 
would have to come from.
    Mr. Burlison. Right.
    Ms. Bodensteiner. I worry that the access to collegiate 
athletics, or to college would be decreased at some 
institutions.
    Mr. Burlison. The vast majority of universities that 
participate in collegiate sports are not private universities. 
These are public institutions, or parochial religiously 
affiliated institutions. As I understand it, they would not be 
covered, does that create a competitive disadvantage?
    Ms. Bodensteiner. That is the difference with Columbia and 
teaching assistants, is they are not competing. Then, when you 
look at the pros, it is one giant bargaining. It is one group 
of players, so yes. Just take the Atlantic Ten Conference. 
There are 15 members, 4 publics, and several religiously 
affiliated, so that is who we are competing against. When you 
try and compete for coaches, and athletic trainers, and 
student-athletes, some who would be intrigued by the unions, 
some who would not want a piece of it.
    The competition is really what makes this different, and 
the fact that inherently only a portion of the Atlantic Ten 
could be unionized. It makes it very difficult.
    Mr. Burlison. Thank you, Ms. Bodensteiner. Professor 
Mitten, in professional sports, baseball, you know, MLB, the 
NBA, these athletes are judged by their performance on the 
field, and they can be cut for poor performance. In contrast, 
many student-athletes, including those who receive 
scholarships, cannot lose their scholarships, or be kicked out 
of school if they do not play well.
    As employees, would this change the dynamic? Would student-
athletes be subject to the same job performance standards as 
professional athletes?
    Mr. Mitten. Well, I think it is very likely that they 
could. You are exactly right in that scholarships can be 
awarded multi years, four or 5 years at the Division I level. 
You cannot take a--a coach cannot take away someone's 
scholarship.
    Mr. Burlison. Then I quickly have just a little bit of 
time, and I want to get this question in because I think it is 
important to our country. That is, what is the impact that this 
is going to have on our Olympic teams? Many of the athletes in 
our Olympic games--who are not paid, they are amateur 
athletes--many of them are college athletes. How would this 
impact America's ability to have unpaid athletes?
    Chairman Good. The gentleman's time is expired. You can 
submit a written answer to that question or use your time in 
the next if someone calls on you. We will recognize now, Ms. 
Adams from North Carolina for 5 minutes.
    Ms. Adams. Thank you, Mr. Chairman, Mr. Ranking Member, and 
thank you to the witnesses for testifying today before the 
Committee. I do understand what it is like to work without 
being classified as an employee, as I recall pursuing my Ph.D. 
I was a full-time teacher of the class that I had.
    I was classified as a teaching assistant, but I did the 
work of a professor, and I probably did not get the pay of a 
professor. I am certainly happy to see that college athletics 
attempt to in the footsteps of the National Labor Relations 
Board of Columbia University's decision.
    Mr. Pearce, let me ask you, there is a bipartisan interest 
in reforming collegiate sports and protecting student-athletes, 
preventing student-athletes from being classified as employees. 
It would seem to me to be counterproductive toward such 
reforms. The NCAA is technically a billion-dollar industry if 
you look at the revenue levels year after year.
    What would be the rationale or significance in banning 
these athletes from collective bargaining, or even organizing 
if they technically meet the standard of what is considered an 
employee?
    Mr. Pearce. Well, the only advantage I can see is that it 
keeps the money in the pockets of those who are gaining the 
substantial revenues. As you have stated, the NCAA is a multi-
billion-dollar organization. These schools profit significantly 
through their partnership with the NCAA.
    The whole question of athletes being able to unionize 
provides an opportunity for the athletes to get some of that 
revenue that they have earned through their labor. We are 
talking about sports being a job here. It is a job because of 
the benefit that it provides these institutions as well as the 
NCAA, and the ability to be able to reap those benefits 
equally, or at least significantly by an athlete is necessary, 
otherwise we have slavery.
    Ms. Adams. Okay. Thank you for that. You know, I have 4H's 
that I work on primarily here, hunger, higher education, 
housing, and healthcare. I do focus on hunger. I was a little 
bit dismayed to see that a 2019 survey revealed that 24 percent 
of Division I college athletes experienced food insecurity in 
the previous month.
    Mr. Pearce, would you explain how unionization of college 
athletes can help address widespread hunger faced by the 
athletes?
    Mr. Pearce. Well, athletes would be able to negotiate their 
terms and conditions of employment. The revenues that are 
denied them would be able to be negotiated, so that they could 
sustain themselves through the resources that the school would 
be able to provide. It would also give them the security that 
they could continue to have the protections necessary if they 
have injuries and the like and cannot play.
    Ms. Adams. OK. Let me move on quickly. The NCAA has 
internal regulations which seek to protect athletes, such as 
the Association's cap on weekly hours toward athletic 
activities, which according to NCAA surveys is often violated. 
Now will a union help enforce NCAA regulations which seek to 
protect athletes? Would it further the cause of creating a 
competitive league?
    Mr. Pearce. Oh, no question. Just like in any other 
industrial contract, if the employer tries to impose more 
working conditions than the contract provides, a grievance can 
be filed, and that would have to be resolved through a 
grievance arbitration process.
    Ms. Adams. Okay, great. Well, thank you, and I have 20 
seconds left. I am going to yield back, Mr. Chairman.
    Chairman Good. Thank you very much. We will now recognize 
Mr. Bean from Florida for 5 minutes.
    Mr. Bean. Thank you very much, Mr. Chairman. Good morning 
to you. Good morning, Committee, and the witnesses, welcome. I 
am glad to have you here, and it is a scary picture we are 
looking at, I guess. The road we are going down is just a weird 
place to be. I was just talking to Representative Moran where 
we are.
    Madam Bodensteiner, you said it is a dark road, and there 
are some very scary implications should all student-athletes be 
employees. What are some of those at the top of your list to 
make it scary?
    Ms. Bodensteiner. I think maybe even beyond the scariness 
is just I am not sure it solves the problems. I acknowledged at 
the beginning we have issues to resolve, but I am not sure a 
handful of unions representing one sport at one school, or ten 
schools around the entire country gets to those issues in an 
impactful way.
    When you do a cost benefit analysis, and you do look at 
that, I think student-athletes, you know, there is no money to 
give at Saint Joe's, right? Now they are being taxed instead of 
their financial aid, now they are perhaps going through work 
comp instead of what I think is one of the most misperceived 
issues in college athletics is the very rich treatment and 
insurance benefits that we provide.
    Happy to go into those in more detail, but I think having 
student-athletes file a work comp claim that a university could 
deny, and then they go to a work comp judge, I do not see that 
helping the athletes at Saint Joe's, so I think they are----
    Mr. Bean. It detracts from the purpose of college, which is 
preparing young people for the world of which they are about to 
embark. Your written testimony is very--it is a lot, so thank 
you so much. Professor Mitten, employees can lose their job. 
Employees--if student-athletes are employees, let alone whether 
they are professional play on the field, but they could get 
fired for just not living up to expectations. Is that true?
    I mean, we could fire a student employee they could get 
fired for not playing well.
    Mr. Mitten. Yes. I would not have wanted to have been one 
of Rick Patino's basketball players about a month or so ago 
when he went off on his rant. Now, there could be some 
protections in the collective bargaining agreement, which would 
provide for a grievance being filed, but that is a rather 
cumbersome procedure, of course.
    Mr. Bean. Got you, and I guess it would just depend on what 
the contract says?
    Mr. Mitten. That is correct.
    Mr. Bean. I could play mediocre and still make sure that I 
am an employee, I guess. Let is go to Mr. Sims. Mr. Sims, and 
you have got a unique perspective because you played in 
college, you played professionally, but is it true--I mean I am 
just thinking is it true that schools are making their own 
decisions, but it is really not fair if one school has 
professional paid athletes, and another school does not.
    I mean, would not we have to solve this at a conference, or 
an overall country level to make sure it is a fair playing 
field for all student-athletes.
    Mr. Sims. Thank you for the question. I think that is what 
I mentioned earlier in one of my answers is it is the 
competitive imbalance--it is one of the things that I really--I 
think about. I think about the potential for increased costs to 
the school that is engaged in collective bargaining, but I 
don't think it stops there.
    When you think about the Fair Labor Standards Act for 
example. If student-athletes are employees under the National 
Labor Relations Act, why are not they employees under other 
Federal statutes, or State statutes? What increased costs would 
that have on a university?
    Would they have to be paid minimum wage? Do they have to 
track the hours to make sure they are not getting overtime, or 
if they are working overtime like I probably did at Providence, 
trying to work on my game voluntarily a lot of times, but you 
know, would that be additional compensation going out the door 
at those specific universities?
    It is not only the competitive imbalance, but it is the 
other ramifications that come with this decision.
    Mr. Bean. Yes. Just from what you are saying too, how it 
would change if this were in place when you were playing, can 
you comment on how you think it would have affected you when 
you were playing? I was a cheerleader back in the day, and I 
cannot imagine if I did not stick that pyramid, then I could be 
fired if I was an employee. Tell us about yours in just the 
brief moment that we have left.
    Mr. Sims. Well, thanks for the question. I think it would 
have significantly impacted my experience because I would have 
been worried about things like bargaining, is the contract that 
usually lasts between two and 4 years. Was that good for me 
when it was put in place? Does that continue to be good for 
student-athletes going forward?
    Did the NCAA change any rules, or the Hockey East for 
example, change any rules in the off season that now may 
violate that contract? There is a lot of different things that 
I think about. Worrying about those issues, like bargaining, or 
if we are going to go out on strike if we do not come to an 
agreement. That is something I was not really interested in 
learning about when I was in school.
    Mr. Bean. 10-4, thank you so much. Mr. Chairman, I yield 
back.
    Chairman Good. I think we all just learned why Mr. Bean is 
so passionate and spirited about everything here just a moment 
ago. Thank you. We will now recognize my good friend from 
Virginia, Mr. Scott, for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Pearce, you 
indicated the factors the NLRB will consider when deciding 
whether or not a team can unionize. What factors would they 
consider?
    Mr. Pearce. Well, thank you for that question, and how are 
you doing, Mr. Scott? It is good to see you again. The 
important fact to consider is the degree of control that the 
university has over the students with respect to their 
responsibilities and their obligations in training and 
performing the sport.
    How it affects their life, their student life throughout. 
There has been testimony where students have to work 40 to 60 
hours. They have to comply with particular regulations. They 
have to get approval to even get haircuts. Some students have 
been required to get scanned, and they hire a gestapo of 
students to follow them around to make sure that they are going 
to class.
    Those kind of elements of control are key elements in 
determining whether or not the relationship is an employer 
relationship. The other factor is the compensation that they 
receive. They receive scholarships as a result of being able to 
play. The Dartmouth students received early admissions after 
being recruited, and got gear, paraphernalia, being flown all 
over the country, as well as sports tickets, all of these 
things that have value.
    Mr. Scott. Thank you. What are the potential bargaining 
units? Is it just the team? Could it be all student-athletes at 
a school, or the whole Conference? What would the bargaining 
unit be?
    Mr. Pearce. Well, the bargaining unit would be only the 
team. It is only the team that has petitioned to be unionized 
in the Dartmouth circumstance. Any petitions that get filed by 
different teams will have to be weighed by the standards that 
they NLRB uses and determines who constitutes an employee, and 
whether or not that group of employees constitute a bargaining 
unit for collective bargaining.
    The only affected students in this scenario are the 13 
students that voted to unionize in this situation.
    Mr. Scott. Dartmouth is an interesting case because they do 
not have athletic scholarships. They only have need-based 
scholarships. Does it make a difference whether or not your 
scholarship is based on your commitment to play sports?
    Mr. Pearce. It does not--it did not make a difference in 
the Dartmouth situation because the compensation was not 
determined based on the athletic scholarships. It was based on 
what I had described before. These students were recruited, got 
early admission, they get all of this paraphernalia, their 
equipment, they are sent all over, and paid for their lodging 
and so forth.
    Those are the kind of criteria in making determinations in 
this case, of the compensation received.
    Mr. Scott. Mr. Sims, did I understand that if you get an 
athletic scholarship, you cannot be cut from the team?
    Mr. Sims. The NCAA recently passed rules that are in place 
now, not just at the Power Five Conference level, the FBS 
Autonomy Conference, but across all Division I schools that if 
you receive a 4-year scholarship going into school, you 
cannot--that scholarship cannot be revoked for athletic 
purposes. Before that, it was a 1-year renewable scholarship.
    Mr. Scott. Can you be cut from the team?
    Mr. Sims. I did not have anybody that was cut from a team 
when I played. I do not know anybody that was for athletic 
performance reasons. There were people that left because they 
were not getting the playing time they hoped for, so maybe they 
left or transferred, but I did not have anybody that was cut 
from the team.
    Mr. Scott. Okay. Mr. Pearce, how is playing sports as a 
requirement to achieve your financial aid package different 
from working say in the library as a condition of being able to 
afford college?
    Mr. Pearce. There is not much difference because there is a 
quid pro quo. If you want the scholarship through the financial 
aid package, you have to do the performance. You fail to do the 
performance, then it would jeopardize your financial aid. There 
is a distinct similarity. Now, I would like to also say that if 
an athlete does not perform--
    Chairman Good. The gentleman's time has expired. We will 
now recognize Ms. McBath from Georgia for 5 minutes.
    Mrs. McBath. Thank you so much, Chairs Good and Owens, and 
Ranking Members DeSaulnier and Wilson, of the HELP and Higher 
Education Subcommittee for hosting today's timely discussion. 
Mr. Pearce, if there is anything else that you would like to go 
ahead and complete, please do.
    Mr. Pearce. Oh. I was just going to say that the difference 
between being a student and having a job playing sports in the 
school is that if you do not perform in the sports, you do get 
cut. You do get benched. The USC former students testified to 
having had their same players' lockers get cleaned out because 
the player left practice early.
    Sure. They were still students, but their job of playing 
the sports was gone.
    Mrs. McBath. Thank you for that. This is a really 
complicated situation, and I am glad to see that you are here 
today to begin to discuss this in earnest at the Committee 
level. Student-athletes must be treated with dignity and 
respect, and I think that is what we are here to all talk about 
today.
    They need to be fairly compensated for their efforts, while 
we also ensure that schools, both large and small, can continue 
to provide the high quality educational and athletic 
opportunities for students that we have come to expect of them.
    I think we can all agree that no student in this country 
should be in the situation where they attend class, or practice 
while not knowing where their next nutritious meal is going to 
come from, or whether they are going to be able to find 
someplace to sleep at night.
    While this is not the reality for most of our collegiate 
athletes, it happens to too many of them, and we need to do 
everything that we can to ensure that all students' needs are 
being met, especially while they are under the increased 
pressure and responsibility of being on a collegiate sports 
team.
    Students are rightfully concerned about their futures and 
are looking to their leaders for solutions, not for politics. 
Now is not the time to scare our students with highly unlikely, 
worst-case scenarios and bad faith exaggerations of the impacts 
that this recent NLRB decision will have on collegiate sports, 
and even high school sports as claimed by some.
    We must remember that this applies to just one team at just 
one private university in a very specific situation. A one size 
fits all solution does not work here, as exemplified by the 
complexity and the uniqueness of this topic, and I look forward 
to continuing this conversation with my colleagues on this 
Committee, and our universities in Georgia, which I represent, 
to ensure that any action that we take is going to always put 
the education of our students first, and I yield back the 
balance of my time.
    Chairman Good. Thank you. We will now recognize Ms. Hayes 
for 5 minutes.
    Mrs. Hayes. Thank you. Thank you to our witnesses for being 
here today. I am from Connecticut and for a long time we did 
not have a professional sports team. Now we have the WNBA 
Connecticut Sun, so college basketball is our sport. Although 
the NLRB does not cover State schools, I know the benefit of 
UCONN basketball for the State of Connecticut and our economy.
    It is worth noting that for years the two highest paid 
State employees in Connecticut are the men and women's 
basketball coaches, respectively. College athletics has become 
a multi-billion dollar industry. This past fiscal year, the 
National Collegiate Athletic Association, or NCAA, brought in 
1.3 billion dollars in revenue.
    In Fiscal Year 2022, the most prominent athletic 
conferences of the NCAA reported more than 3.3 billion dollars 
in revenue, thanks to the hard work of their collegiate 
athletes. Not only are these athletes not fairly compensated 
for the value they provide, or skills they possess, but their 
basic needs are often not being met. A 2019 Hope Center for 
College Community and Justice survey found that almost 24 
percent of Division I athletes experienced food insecurity in 
the month before the reporting period.
    Further, a 2022 study published by the National Institutes 
of Health found food insecurity more prevalent among college 
athletes, compared to the general university population. Ms. 
Bodensteiner, do college athletic scholarships at Saint Joseph 
University include a meal stipend? Additionally, are the 
athletes on partial or no scholarships provided with food 
assistance?
    Mr. Bodensteiner. Thank you for your question. The amount 
of scholarship depends on how much athletic aid the coaches 
have, and how much they can give. Some are on full room and 
board, some are not. When they are participating in athletics, 
meals incidental to that participation are covered by the 
university.
    Mrs. Hayes. Last month--thank you. Last month, I introduced 
the Closing the College Hunger Gap, legislation that would 
direct the U.S. Secretary of Education to notify college 
students of their eligibility for SNAP based on information 
reported through the FAFSA form. Ms. Bodensteiner, do you 
believe that legislative efforts could help to make sure that 
college students are receiving meals while they are on the 
university campus?
    Ms. Bodensteiner. I think all students need to and deserve 
to have meals when they are on campus. I have been, you know, 
horrified at the concept of reducing or doing away with Pell 
Grants. That has been spoken about, and athletes can receive 
Pell Grants, and many do, although at our institutions it is 
less than 10 percent who are Pell Grant eligible, but I am in 
favor of any legislation that helps give college students in 
general access to food.
    Mrs. Hayes. I did not expect for you to be my favorite 
witness today but thank you for that because I too agree with 
those things wholeheartedly, all students. Hungry kids do not 
learn, and for a student to be expected to play sports, and not 
have food just exacerbates that issue.
    In 2015, athletes in football, baseball, men's basketball, 
and women's basketball, individual and sports, reportedly spent 
about 40 hours a week on athletic activities in addition to the 
hours spent on academics. Dartmouth basketball players cited 
their struggle to pay bills as one reason, they decided, behind 
their decision to unionize.
    Mr. Sims, in your opening you raise questions about tax 
status, overtime, and what the definition of an employee is. 
Are all these things issues that could be negotiated at the 
bargaining table, and agreed to by both sides, the students and 
the employers, or the universities?
    Mr. Sims. Thank you so much for your question. Yes, those 
issues certainly would be issues that would be collectively 
bargained. The question is whether the university or the union 
on the other side would agree, and that is a lot of the 
uncertainty that I spoke about in my opening statement was 
about the uncertainty in collective bargaining, and how that 
would play out.
    Mrs. Hayes. Again, is that the point of collective 
bargaining, to bring those questions to the table and get both 
sides to come to a compromise? I mean every time a union goes 
to the table there is uncertainty about what is going to happen 
on both sides that actually is the basic premise behind 
collective bargaining.
    Mr. Sims. Correct. That is the premise behind it, but 
collective bargaining only requires you to bargain in good 
faith. It does not require you to agree to the other side's 
proposals. Again, the question is the uncertainty of whether 
that would actually benefit the student-athletes, or not 
benefit the student-athletes. That is really part of where my 
concern was.
    Mrs. Hayes. If it does not benefit, the athletes have the 
opportunity to walk away. My time is expired. Thank you all for 
your testimony today. I yield back.
    Chairman Good. Thank you, and I now recognize Chairman Foxx 
for 5 minutes.
    Mrs. Foxx. Thank you, Mr. Chairman. Ms. Bodensteiner, an 
NLRB regional director recently found that the men's basketball 
players at Dartmouth College are employees. The student-athlete 
subsequently voted to join a union. Can you discuss what impact 
this decision could have on competition in college athletics?
    Ms. Bodensteiner. Thank you for the question. We will start 
with the decision itself, which I thought was interesting in 
terms of the fact that Dartmouth student-athletes receive no 
athletics aid. Their financial aid is purely need based, so 
this is a very unusual, I think, application. It is also ironic 
in that the exact factors that are deemed to be ``control,'' 
are also, you know, how student-athletes travel, where they 
stay on the road, are also to protect them.
    If we sent them out in their own cars and had them find 
their own Airbnb, we would be here in a different direction. I 
thought those were a very interesting application of the facts. 
As I mentioned here before, I am not anti-union at all. I just 
am worried about the fact that there would only be a handful of 
unions in a competitive environment that would create even my 
own conference, the Atlantic Ten, where only a few of the 
schools would be subject to unionization, would make it very 
difficult, as Chairman Gaston Pearce recognized in 
Northwestern, to complete on a level playing field.
    Recruiting athletes, recruiting coaches, recruiting 
athletic trainers when one is operating under a student-athlete 
workforce, and the others are not, I think would be incredibly 
difficult.
    Mrs. Foxx. Thank you very much. Professor Mitten, 
collegiate sports have undergone transformational change in 
recent years. Student-athletes may monetize their name, image 
and likeness, and more freely transfer schools without losing 
eligibility. Given these significant changes, do requirements 
still exist to maintain the educational privacy of 
intercollegiate sports?
    Mr. Mitten. Yes, very much so, Chairwoman Foxx. If you look 
at the 2022 NCAA Constitution, student-athletes are much better 
off than they were in 2015. In fact, I would say there is no 
better time in the history of the NCAA, going all the way back 
to 1906, student-athletes have it very well. I mean there is 
scholarship protections at the Division I level.
    They can get multi-year scholarships. Full cost of 
attendance scholarships, and individual schools if they want 
can provide academic bonuses. Above that, just simply for 
meeting grades you can get up to almost $6,000.00 if a school 
chooses to do it, and then certainly NIL rights. There are some 
athletes that are getting six and seven figure deals.
    Mrs. Foxx. Well, I think it has always been significant 
that we do say student-athletes. Mr. Sims, in your written 
testimony you note that you do not believe--you believe it is 
not in a student-athlete's best interest to be classified as 
employees under the National Labor Relations Act.
    Can you discuss why you believe that, and explain some of 
the potential consequences of unionization on student-athletes?
    Mr. Sims. Thank you for the question, Chairwoman. As I 
spoke about earlier in my opening testimony, I have many 
concerns about unionization, and whether it would result in 
positive outcomes or not. The first issue being compensation 
and taxes.
    Right now, the IRS exempts, currently exempts, athletic 
scholarships, but the IRS does not exempt scholarships that are 
based on providing services like teaching, for example. Would 
that exemption status change, and would you know, student-
athletes have to pay significant tax bills at the end of the 
year on their athletic scholarships?
    The uncertainty of scheduling and overtime, would there be 
a provision in the collective bargaining agreement that would 
not allow me to voluntarily continue to work on my craft, or go 
to tutoring or extra classes? Those are some of the examples 
that I gave and have in my written testimony.
    Mrs. Foxx. Thank you all very much for being here. This is 
a big topic these days, and I think you have shed a lot of 
light on the issue for us, and given us information that is 
useful, very useful, to the Committee. Thank you, Mr. Chairman, 
I yield back.
    Chairman Good. Thank you, Dr. Foxx. We will now recognize 
Ms. Wild from Pennsylvania for 5 minutes.
    Mrs. Wild. Thank you, Mr. Chairman. Excuse my froggy voice. 
Mr. Pearce, thank you so much for your testimony and your 
written materials. They were helpful. I have heard a lot of sky 
is falling rhetoric this morning regarding what will happen 
because of the Dartmouth case. I would like your help in 
contextualizing that case.
    Am I correct that the Dartmouth case only affects their 
men's basketball team, not their women's team, or their 
volleyball teams, or other teams at Dartmouth?
    Mr. Pearce. That is correct.
    Mrs. Wild. Thank you. It does not automatically affect 
other schools. Am I right about that? Or will it only affect 
other schools if athletes pursue employment recognition through 
the law and insist that they are similarly situated?
    Mr. Pearce. That is correct.
    Mrs. Wild. OK. The other concern I have is about smaller 
colleges and universities that have fewer resources, without 
huge endowments and so forth. I am concerned about the 
potential impact of a universal student-athlete employee 
classification, and whether it would affect the ability of the 
smaller schools to support their athletic programs. Do you have 
any thoughts on that?
    Mr. Pearce. Yes. My thought is that the university as an 
employer has to make decisions as to what they can afford and 
what they cannot. They do it all the time. They subsidize 
things that they need. They make a cost benefit analysis as to 
whether or not that which they subsidized brings value to the 
school and has a contingent.
    The Dartmouth students in the cafeteria are unionized. That 
cafeteria has run at a deficit forever. They were able to 
negotiate a collective bargaining agreement where their pay was 
three times that of the New Hampshire minimum wage because the 
university saw the value in providing this benefit for these 
students.
    Likewise, this will be the case in other circumstances with 
other universities on a case-by-case basis because the value 
that they see translates to goodwill, to increased enrollment, 
to alumni contributions and the like. That is the value that is 
brought by the services that have been provided.
    Whether or not an institution runs at a loss or a profit, 
does not have anything to do with whether or not these are 
employees. Amazon had billions of dollars lost last year. Their 
employees were not converted to some other status. They were 
still employees.
    Mrs. Wild. I also wanted to discuss with you the fact that 
private institutions like Northwestern are governed by the 
NLRA, and public institutions are generally governed by State 
law. How does that affect the students and their ability to 
organize?
    Mr. Pearce. Well, that is a question that still remains. 
The General Counsel has a theory. She says that the NCAA, which 
is a partner with these universities, so much so that it is a 
joint employer with the universities, and should be at the 
bargaining table, is a private entity that the NLRB has 
jurisdiction over.
    The partnership between the NCAA, and even a public sector 
university, under certain theories of the case law could bring 
that public sector institution under the jurisdiction of the 
National Labor Relations Board. That is something that the 
Board itself has not weighed in on, but that could be asserted.
    Mrs. Wild. Okay, great. I find myself with the enviable 
position of having a few seconds left. Much of this 
conversation is centered around men's teams. What is being done 
by the NLRB to consider the protection of academic and athletic 
opportunities for women student-athletes?
    Mr. Pearce. Well, if women's teams are in a position to 
file a petition to be unionized, and they have met the employee 
criteria that has been established in cases like the Dartmouth 
case, they can well be found to be employees and can unionize.
    Mrs. Wild. Thank you so much. I yield back.
    Chairman Good. Thank you. We will now recognize Mr. 
Thompson from Pennsylvania for 5 minutes.
    Mr. Thompson. Chairman, thank you so much, and thank you to 
all of our witnesses for being here today. Just since my time 
arriving in Congress, the landscape of college athletics really 
has shifted significantly. We all know the system is at an 
inflection point as we deal with ramifications of name, image, 
likeness, or NIL.
    While NIL is not the focus of the discussion here today, 
and largely not within the jurisdiction of this Committee, it 
is absolutely critical that Congress come together and provide 
a clear set of rules for states, institutions, supporters, and 
most important, student-athletes.
    I remain concerned that without key safeguards, oversight 
and a proper regulatory framework, the current NIL market is 
unstable, and it leaves student-athletes vulnerable. As for the 
focus of today's hearing, I am proud to represent colleges and 
universities of all sizes and athletic affiliation in 
Pennsylvania's 15th congressional District, ranging from large 
Division I programs like Penn State, to Division III 
institutions like the University of Pittsburgh at Bradford, and 
quite frankly everything in between.
    While these institutions have many differences, one thing I 
consistently hear from faculty, staff, administrators, and 
student-athletes are profound concerns over reclassifying 
student-athletes as employees. The cornerstone of college 
athletics has always been the ability of individuals to earn a 
college degree, while participating in their sport of choice.
    In fact, even as the NCAA sees record participation in 
collegiate athletic programs, only a small fraction of student-
athletes will go professional. The college degree offers 
students the skills and knowledge to succeed in their careers 
beyond athletics, yet the National Labor Relations Board 
threatens these opportunities for young men and women around 
the country.
    Ms. Bodensteiner, I am proud to see a fellow Pennsylvanian 
here today and thank you for being with us. What most people do 
not understand, as you noted in your testimony, is that most 
universities, including many large institutions that have 
successful Division I programs, do not generate a profit from 
their athletic programs.
    My first question for you is if the NLRB's decision in the 
Dartmouth case is upheld, and student-athletes are classified 
as employees, what would the financial impact be on college 
athletic programs?
    Ms. Bodensteiner. Thank you for your question, and for your 
service to our State. The college athletics is not currently 
set up to manage a student-athlete workforce. We have 480 
student-athletes. The administrative and infrastructure that 
would be required, and as Chairman Gaston Pearce noted, there 
could be 21 different bargaining units among 21 sports.
    That would be an incredible expense to the institution to 
try and manage that. Not to mention if there were negotiated 
benefits as part of that, so I think the cost to institutions 
would be great and thank you also for acknowledging.
    At Saint Joseph's University, where we do not make a net 
profit by any means, our coaches are teachers. We are here 
because you know, 95 percent of women who have reached the C 
suite in Fortune 500 were athletes. That is why we are doing 
what we do.
    To change this from the teaching, the mentoring and the 
developing into a student-athlete workforce would be 
incredibly--go against everything, every reason we support it, 
but more importantly would cost a lot of money.
    Mr. Thompson. Can you discuss how universities would react 
to the increased costs of operating athletic programs, the 
overhead costs would be significant, including any potential 
cuts you see being made?
    Ms. Bodensteiner. I cannot speak on behalf of my 
university, but I think just in talking to athletic directors, 
I think difficult decisions could have to be made in terms of 
how many student-athletes is the right number, and how many 
sports you can continue to sponsor to support a student-athlete 
workforce.
    Mr. Thompson. It seems to me that increased overhead costs 
will once again become a cost item by which tuition will be 
reflected in increased tuition. This is a Committee that has 
been obviously committed to making higher education more 
affordable, and this is counter intuitive to affordability and 
higher education.
    If the NLRB is permitted to treat student-athletes who do 
not even receive athletic scholarships as employees, would that 
impact other students participating in extracurricular 
activities, such as music, theater, marching band?
    Ms. Bodensteiner. If you apply the original director's 
decision in Dartmouth, and we now have some band and cheer 
getting scholarships to participate in activities. We have a 
theory that financial aid is one thing, but financial aid and 
an invitation to belong is more powerful.
    Could really look at a lot of extracurricular activities 
under the breadth and scope of the Dartmouth and say that 
absolutely the band members could be employees. They receive 
gear. They receive lodging when they support our team, and so I 
believe that they could be considered employees.
    Mr. Thompson. Thank you. Thank you, Chairman.
    Chairman Good. Thank you. We will now recognize Mr. Banks 
from Indiana for 5 minutes.
    Mr. Banks. Thank you, Mr. Chairman. Thanks to each of you 
for being here, and I know you have already answered many 
questions, but Mr. Sims, you have a unique perspective as a 
labor lawyer, and a former college athlete. From your 
perspective, I think you have already answered this, but would 
college athletics be able to sustain itself if student-athletes 
became employees?
    Mr. Sims. Thank you for the question. One of the stats that 
I included in my written testimony that I think is very 
powerful is we have already seen how increased costs or less 
revenue has affected college sports. You have to look no 
further than the COVID-19 pandemic issues that colleges dealt 
with, and in total--excuse me, 112 Division I sports were cut 
by 35 schools and 77 still have not been reinstated.
    Between March 11 and November 6 of 2020, a total of 352 
NCAA sports programs were cut, and the vast majority of those 
programs were Olympic sports. Given your question, given the 
administrative costs that could come down the line and 
potential increased costs if you know, a single unit, or a 
couple units were able to bargain for, you know, increased 
compensation, or increased benefits.
    I am concerned that these numbers will start showing 
themselves again.
    Mr. Banks. If student-athletes did become employees, could 
universities implement non-compete clauses restricting them 
from transferring, technically?
    Mr. Sims. Thank you for the question. I certainly think 
that is possible as I discussed with you previously, collective 
bargaining brings a lot of uncertainty, so whether employees 
can transfer, whether they are not allowed to transfer, we do 
not know how that is going to play out in a collective 
bargaining environment.
    Mr. Banks. Could student-athlete employees be subject to 
performance reviews?
    Mr. Sims. Well, based on my experience negotiating 
collective bargaining agreements, and dealing directly with 
labor unions, certainly performance reviews are possible. 
Again, it depends on what is negotiated into the collective 
bargaining agreement. As I have previously stated when I played 
professional hockey for 3 years, I played on nine different 
teams.
    I got cut. I got called up. I got sent down, and certainly 
some of those were performance reasons, and those are the type 
of things that I would expect to see if a university was 
compensating student-athletes for their performance and their 
playing proficiency. I could certainly see those type of issues 
coming up.
    Mr. Banks. Could student-athlete employees be terminated 
for poor play, or laid off for poor performance?
    Mr. Sims. That is certainly a possibility, and something 
that universities would want to include in a collective 
bargaining agreement, especially if they do agree to certain 
additional benefits.
    Mr. Banks. Could student-athletes who are allowed to 
transfer, could they immediately play for a new school under 
current rules? They could now?
    Mr. Sims. Yes.
    Mr. Banks. That could be changed if they become student-
athlete employees.
    Mr. Sims. Sure. Under a collective bargaining agreement the 
transfer portal, there would be questions about what that would 
be. Right now, they can transfer and immediately play for 
another school. If you have a collective bargaining agreement 
with your school, there may be a provision in there that 
prevents the student-athletes from doing that.
    Mr. Banks. I imagine the same answer would apply to this, 
if they became employees could there be a financial penalty for 
athletes that transferred to another school?
    Mr. Sims. Again, that is possible, depending on what is in 
the collective bargaining agreement.
    Mr. Banks. If a student-athlete, employee was unionized, 
how would that impact the process of transferring to another 
school?
    Mr. Sims. I think it would impact it in the sense that we 
talked about that you know the NCAA currently has the transfer 
portal where students can transfer freely, and play 
immediately, as opposed to sitting out a year, which was the 
previous rule. An individual collective bargaining agreement 
may render that transfer portal ineffective for those students.
    Mr. Banks. How many years of eligibility will athletes have 
as employees? You and I are making the same point.
    Mr. Sims. That is a really good question. I do not know 
what the years of eligibility would be. Would they try to 
negotiate more than 4 years of eligibility in a contract? That 
is possible.
    Mr. Banks. They get paid, so they might want to stick 
around longer. I think you and I are making the same point. 
Today's student-athletes have a lot of flexibility, and if they 
become unionized, or collective bargaining under this situation 
we are taking away it seems to me, you can disagree, we are 
taking away a lot of flexibility from student-athletes.
    Mr. Sims. It is not only the flexibility, it is the 
student-athletes coming into the school and being potentially 
subject to that collective bargaining agreement that they never 
agreed to, right? Choosing not to go to that school because 
they have a collective bargaining agreement, and that school 
potentially is suffering.
    Mr. Banks. It seems like we are opening Pandora's box. 
Thank you, Mr. Chairman, I yield back.
    Chairman Good. Thank you. We will now recognize our Ranking 
Member for 5 minutes.
    Mr. DeSaulnier. Thank you, Mr. Chairman. Mr. Pearce, you 
mentioned the case in 1950 where the NCAA defined student-
athlete, and we have argued with this, about this to a certain 
degree in Olympics and college athletics as well, what is, are 
they really amateurs or not?
    In that case, I found that fascinating. I did not realize 
that what you said in your testimony was student-athlete was 
put in place to protect the institution, the NCAA, from 
potential lawsuit from somebody. Could you elaborate on that? 
Just as from the NLRB's position, if it walks like a duck and 
quacks like a duck, it does not seem like it was ever really 
amateur at some level.
    Mr. Pearce. Well, it was a defensive strategy on the part 
of the NCAA in the 1950's to preserve it from lawsuits. There 
was a lawsuit that was filed because of the wrongful death of 
an athlete who was playing football and died during the course 
of that. Consequently, this term of art, ``student-athlete,'' 
which stressed the amateurism in order to be able to argue that 
this student was not an employee, but a student, and therefore 
they would be escaping liability.
    Mr. DeSaulnier. Right.
    Mr. Pearce. It was the concern about liability, not the 
whole notion of the purity of amateurism, that was the 
motivating factor in that determination. That persists in the 
subsequent litigations where athletes have sued their 
universities because of the injuries that they sustained.
    Mr. DeSaulnier. Was not that part of the Alston decision, 
which was a unanimous decision. The opinion was written by a 
Trump appointee, Justice Gorsuch. I have already used a quote 
from Kavanaugh. Was that acknowledging what we have been living 
under? I mean from a legal standpoint, the Supreme Court said 
these are not amateurs.
    Mr. Pearce. That is right. The Supreme Court further said 
that collective bargaining is warranted because of the 
imposition on the lives and livelihoods of these athletes that 
the NCAA creates.
    Mr. DeSaulnier. There are a lot of decisions I do not agree 
with, with the current Supreme Court, so Congress would have to 
correct it. This is separate from name, image, and likeness, 
would it not, or could it.
    Mr. Pearce. Yes. That is right.
    Mr. DeSaulnier. It would only--we would have to really make 
it a strict defining line as to what is amateur and what is 
compensation?
    Mr. Pearce. I think so, yes.
    Mr. DeSaulnier. Explain to me a little bit about how you 
would perceive the NLRB dealing with this situation as has been 
expressed having gone to a private catholic college and playing 
minor sports. How do you deal with the competition aspect? To 
some degree I could see for instance, in the case of Dartmouth, 
SEIU representing them, but collectively bargaining in a 
pattern base for all of the student-athletes in the school.
    How would the NLRB approach that? How would they discern 
who is outstanding or not.
    Mr. Pearce. Well, with respect--I am hearing two questions 
here because--and I will answer one, or I will answer what I 
understand in case I am misunderstanding you. If we are 
concerned about a proliferation of bargaining units within a 
university because each----
    Mr. DeSaulnier. Excuse me, I am not. I am concerned about 
protecting the students.
    Mr. Pearce. Right.
    Mr. DeSaulnier. As employees. You could have SEIU come in 
and represent all of them with the students agreeing to that.
    Mr. Pearce. Exactly. That would be something that the union 
could--unions could do after they get certified as the 
exclusive representative.
    Mr. DeSaulnier. My question is how would the NLRB approach 
that?
    Mr. Pearce. What the NLRB would do is if the unions each 
have established themselves as the representatives of each of 
the teams, and they decide to join together as an amalgamation 
to bargain as a group with the university, the NLRB would 
certainly permit that and recognize that, just like a multi-
employer bargaining is permissible.
    Mr. DeSaulnier. They would just wait to see what the 
prospective bargaining units would bring to them?
    Mr. Pearce. That is right.
    Mr. DeSaulnier. OK. Thank you all. Thank you very much. I 
yield back.
    Chairman Good. Thank you. I now recognize myself for 5 
minutes. There has been a lot of misrepresentations or 
misunderstandings presented today on the true reality of 
college athletics today, what happens on college campuses, 
particularly as it relates to our student-athletes. Most 
underprivileged student-athletes are on full scholarship, as 
football and basketball players, predominantly, and they get 
many financial benefits beyond tuition, room and board, books 
and fees in the range of $1,000.00 a month for full cost of 
attendance, academic incentives, a Pell Grant and so forth, as 
has already been noted.
    Most of the Olympic sports are very expensive to compete 
in, and to get to the level, the travel club level that 
requires a lot of parental investment in order to get to the 
collegiate skill level, and most college student-athletes are 
in fact not on scholarship. Let me say that again. Most college 
student-athletes are not on scholarship, and they are willing 
participants, and they are the envy of the rest of campus, and 
the envy of their high school teammates who did not have the 
ability to continue in college.
    That is the reality of the student-athletes that we are 
talking about on a typical college campus. I appreciate all of 
our witnesses today. Ms. Bodensteiner, other than football and 
basketball, we have talked about many times how the other 
sports do not typically always generate revenue with very rare 
exceptions, unique situations.
    Would you venture to estimate what the cost of employment 
status might be for the typical D-1 university? What would that 
cost be maybe on a monthly, weekly, annual basis?
    Ms. Bodensteiner. I have not thought through it from that 
perspective, but I can say that adding 480 student-athlete 
employees would be about the same number of employees we have 
currently, so you can assume you would double your human 
resources department. I think the infrastructure would be 
considerable.
    Chairman Good. Well, I will just give some estimated raw 
numbers. Let us just say you have got typically 500 student-
athletes at a D-1 school. Let us say you are going to pay them 
$20.00 an hour. I do not know if they would negotiate if Mr. 
Pearce, and others have their way for $20.00 an hour, but let 
us say it was $20.00 an hour for 20 hours a week, and they do 
not work more than 20 hours a week.
    That is just not--that is a misrepresentation also, by the 
way. Let us say you had to pay them 400 bucks a week times 500 
student-athletes, that is $200,000.00 a week. If you annualize 
that, and I realize they do not--they are not the full 20 hours 
a week during the so-called off season. There is no off season, 
but that is some 10 million dollars a year for the typical D-1 
institution.
    What would happen, if you want to talk about what happened 
to women's sports if that were the case. Schools might decide 
well I do not want to pay this amount of money to provide this 
student-athlete experience for non-scholarship athletes.
    Even women's sports, men's Olympic sports would be most 
impacted. We might decide we do not want golf. We do not want 
track, we do not know you know, wrestling. We do not want these 
other events. I know you have talked about something, talk 
about the impact that it might have on women's sports, but also 
men's sports that are on Title IX protection?
    Ms. Bodensteiner. Yes. I think the first unfortunate thing 
would be a transforming or transitioning financial aid into the 
wages, and so I think again financial aid provides college 
access to so many student-athletes throughout the country. 
Women's sports are largely protected by Title IX, not that 
everyone follows Title IX, and adheres to it.
    I think--I do worry about men's and women's sports 
altogether, as you mentioned, that do not generate any revenue, 
which at most schools is several of the sports. You think about 
it, it has been mentioned here today about the Olympic 
development program, which is really colleges and universities 
are non-governing boards, are U.S.A. swimming and fencing, and 
so it really utilized the colleges and universities heavily to 
prepare Olympians.
    I do think some difficult decisions would have to be made.
    Chairman Good. Thank you very much. Mr. Sims, I think about 
how most student-athletes, or many at least, choose a school 
because of their teacher, you called it, their coach, their 
teacher, and how might the impact of employment and 
unionization harm, like it does every place else where there is 
a union shop, but management becomes the enemy.
    Management becomes the other. This ``us versus them'' 
mentality. How might it change the relationship between 
student-athletes and their coach if it was a union situation, 
and union employment situation in fact.
    Mr. Sims. Thank you for the question. I valued my 
relationship with my coaches at Providence, and one of the 
concerns I have is how will that relationship change? If 
something goes wrong, could I go to them for help, or would I 
have to go to a union shop steward and potentially file a 
grievance that may undermine my coach's authority.
    That is one of the things I really am concerned about, and 
I think the relationship between coaches and players is similar 
to a teacher and a student, and I keep in touch with one of my 
coaches, even up to today.
    Chairman Good. Yes. While Ms. Bodensteiner, I appreciate 
what you said a couple times today. Hey, you are pro union, I 
do not share those pro union views, but I appreciate that you 
were still able to articulate how what a really dangerous thing 
this would be to employ our student-athletes as employees, and 
therefore to give the ability to unionize.
    With that, we will move to our closing remarks. Oh, OK. 
Thank you very much. First, I will recognize Mr. Owens, our 
Chairman from the Higher Ed Committee, Subcommittee, for his 
closing remarks.
    Mr. Owens. Thank you. I want to thank all the witnesses. 
The last 2 hours I think we can all agree on one thing, and I 
can describe that in two words, this is pure chaos. How do you 
destroy a college student-athlete model has worked for all 
these years? Chaos. Why is it that after 118 years, now all of 
a sudden, we have the NLRB so concerned about protection and 
health safety and respect for the college athletes? Because of 
NIL.
    There is a lot of money on the table. It has nothing to do 
with the athlete. It has to do with the fact that it is a 
very--it is a place we can get a lot of income just by 
unionizing. Now, I am going to--kind of put it as straight as I 
can. There is an old saying that says if it is not broke, do 
not fix it.
    NLRB and union bosses say very simply, it is working, break 
it. As long as we get paid, keep breaking it. That's what we 
are looking at right here. I am a product of this process. I 
went to the University of Miami. I got a scholarship there, 
graduated biology and chemistry, and could not have afforded to 
done that.
    Did not go there to think I was going to go to the NFL. I 
just went there to get an education. The benefit was all the 
other serendipities, character, tenacity, grit, understanding 
the ups and downs, multitasking, somebody mentioned that.
    It is also that plus factor. A plus factor is if I needed 
another athlete, I would already have a certain amount of 
respect particularly seeing the ups and downs. As a plus--plus 
factor, I found that they were wrestlers. These are things, 
because we understand that character being in the building in 
that process, guess who does not care about that? NLRB and 
union bosses.
    They do not care about--they are not stakeholders, they are 
not coaches, they are not there to see how this program falls 
and works out for the athlete down the road. They care about 
the bottom line--how much money can we make off of union dues? 
We have seen this before. We have seen it in the Pro Act.
    When the market does not push us in the direction what 
these do is force it through legislation. The Pro Act very 
simply was to make sure that all independent contractors are 
now employees. Why? Employees now get paid union dues. It 
actually--it was a mess in California when they tried to do it. 
They had to pull some of it back.
    Now we are looking at 18-and 19-year-old kids being asked 
to be employees, and to navigate this process of getting 
education at the same time trying to figure out how I can make 
the most out of the time I am here, how much money we can make. 
This is a way to truly destroy an industry.
    I will say this to the rank and file union members. Just 
know that there will be a lot of profit in the coffers of the 
union, but your kids, your son, your daughter, your niece, your 
nephews, they will be impacted by this when their programs 
disappear. This is an American conversation.
    Okay. I do not care what side of the aisle you are sitting 
on. We want our kids to have the greatest opportunity to build 
the character we need to have the kind of preventing Americans 
we need down the road. Let us not destroy our athletic programs 
we have across the country. Every child should have it, whether 
they are making profits or not. Colleges will figure this out 
because they are innovative.
    They know the value. Do not let the union NLRB come in and 
destroy this because there is so much money now made by the 1 
percent that is coming through this process with NIL. We are on 
the right track, actually I think from what I have heard from 
everyone here, that we can all agree, that chaos is not the way 
to go, so let us just be very careful about that. With, that I 
yield back.
    Chairman Good. Thank you. I now recognize the Ranking 
Member of the Subcommittee on Health, Employment, Labor and 
Pensions for his closing remarks.
    Mr. DeSaulnier. Thank you, Mr. Chairman. Thank the Chair, 
Mr. Owens as well, and thank you to the witnesses. This has 
been very thought provoking. We clearly have challenges. I 
would disagree with my two friends on a couple of things. 
Collective bargaining does not always end up in chaos. The vast 
majority of collective bargaining works out well.
    These are human guidelines for human institutions. If you 
have a bad employer. I would say the other thing about this is 
a lot of students can choose, or the workers can choose. They 
can choose to vote by a majority of whether they want to form a 
union or not. The vast majority of businesses, particularly 
small businesses, like the ones I manage, they do not unionize, 
even in states like California where we make it as easy as 
possible.
    I think this would actually help that. If you have a good 
athletic director, a good coach, and you going to work with 
your students as they come in, and it is going to be challenge. 
I think there is a role for these committees to play to try to 
figure out what the guidelines are given the Supreme Court's 
decision in so much so we can come to agreement.
    Now, the only thing I worry about is just the collective 
benefit to the university, to larger community. Mr. Sims, you 
have alluded to this in your multiple capacities. Great 
admiration for Providence, the Friars, our staff here and I 
used to, we went to Holy Cross, so we used to go down the road 
to Providence.
    The collective benefit too is something we did not talk 
about. I wanted to just reassert because we did not talk about 
this. This is a choice. If this continues the way it is, the 
students, like at Dartmouth and other schools, will choose 
whether they want to organize or not under the direction, and 
that is something we have not spent a lot of time on.
    However, I do think the reality is, I think I tried to 
illustrate in our conversation about where ``student-athlete'' 
came from, is that there has always been a tension here about 
what was amateur and what was professional, what generated 
income, and yes, Mr. Owen's follow the money. There is a lot of 
money involved, more and more as our institutions appear to 
become more monetized than ever.
    The NCAA institutions place a great deal of pressure on 
college athletes to succeed, both academically and 
athletically. Even with the pressure, college athletes are 
still not entitled to the most basic safeguards of health and 
safety, and that is what we are talking about. If a student-
athlete gets hurt, should they and their family go into their 
pocket to pay for that damage, and the lost income because they 
will not be able to pursue their athletic career 
professionally, or other careers.
    That is what we are talking about. A collective bargaining 
relationship could help ensure students, in my view, to have a 
seat at the table when it pertains to their well-being and 
compensation. Even for students that choose not to collectively 
bargaining, it puts more pressure on the institutions to work 
with people honestly and openly.
    Simply put, despite the assertions we hear today, allowing 
college athletes to form, or have the ability to form, based on 
their own choice, a union, to negotiate for better working 
conditions would help hold collegiate athletics accountable for 
putting athletes first.
    Unionization, or the threat of unionization, or the 
opportunity is the word I would use for unionization, is not 
the end, but rather the beginning of an equitable system and 
treatment for people who frequently get the short end of the 
stick, especially in a multi-billion-dollar industry like 
sports. Thank you, Mr. Chairman. I yield back.
    Chairman Good. Thank you. I now recognize myself for my 
closing remarks. Today we have heard a lot about how harmful it 
would be in college athletics if NLRB succeeds in classifying 
student-athletes as employees. It is abundantly clear the NLRB 
would rather pander to unions than prioritize the well-being of 
student-athletes.
    As has been noted, only 2 percent of student-athletes will 
go pro in their sport. The majority are on campus to get their 
education, while participating in the sport that they love. 
Athletics is a wonderful thing for student-athletes, and for 
universities, and I do not understand why we would try to 
destroy that.
    I do not think the unlimited NIL, or the transfer portal, 
the recent developments that are so consequential, have 
improved college athletics, as we move further into the world 
of rewarding the highest bidder, and we now encourage and 
reward disloyalty, and jumping ship, or sending greener pasture 
for student-athletes.
    Today's subject of employment status and unionization 
presents much more damaging consequences, I would submit. The 
fact is the majority of student-athletes, especially on the 
men's side, are not on scholarship. They simply compete for the 
pure joy and love of their sport, the privilege of representing 
their university, and the intrinsic value of athletic 
competition.
    Maybe as Ms. Bodensteiner said, they want to be part of 
that 95 percent of C suite occupants in the corporate world who 
were former athletes. Just for example, in the sport of 
baseball, there are some 35 athletes typically, and you have 
got 11.7 scholarships in sports like wrestling and soccer, 
again 30 or 35 athletes, 9.9 scholarships on the men's side.
    Track, cross country 12.6 scholarships for huge rosters for 
track and cross country usually are limited because of Title IX 
on the men's side unfortunately. Nothing draws students, 
alumni, the community or campus like college athletics. Nothing 
does. Nothing unites a campus on a common cause, or a common 
spirit like athletic events on campus.
    That is why you have homecoming, parents' weekend, alumni 
reunions, college for a weekend, all your other recruitment 
events around athletic contests, typically football and 
basketball. Nothing markets the school better, brings more 
pride for those in an institution like their athletics program.
    Nothing enriches the college experience like enjoying the 
privilege of being a student-athlete. Again, nothing builds 
those character qualities most desired, and most key to success 
in life like getting the privilege of being a student-athlete. 
That said, as I referenced a little earlier this exploited 
student-athlete is a myth. That is a myth, the exploited 
student-athlete.
    Typical student-athletes who are on scholarship can receive 
in the range of $1,000.00 to $1,500.00 a month in cash 
benefits, again beyond tuition, room and board, books and fees, 
for the cost of attendance, academic incentives, Pell Grants 
and so forth.
    It is also, I would like to note that it is a disgrace that 
one of our witnesses today injected race, typical to the left's 
presentation of almost every issue, into this discussion today, 
claiming that white college administrators are exploiting black 
athletes on our college campuses. I think that was a disgrace 
that was said today.
    If you carry this mindset to its logical conclusion, if 
somehow we were to step back in time, and we are not going to 
permit college--excuse me, black athletes to compete on college 
campuses, we would then therefore be sparing them from 
exploitation, or would we be discriminating again? Which one 
would it be?
    I think it is just terrible that race was injected into 
that in the way that it was presented by one of our witnesses. 
As has been said today, the NLRB's decision is a threat to 
women's sports, and even more so to men's Olympic sports. Like 
forcing an increase in the minimum wage, and some in California 
are actually proposing a $50.00 minimum wage there.
    This would cost jobs. This would cost opportunities for 
student-athletes. Making employment deals with benefit packages 
would bankrupt and shrink athletic programs since most college 
sports, again, do not generate revenue. Unionization could 
force colleges to pay salaries and provide insurance for every 
student-athlete on campus, walk on's and scholarship athletes 
alike, not to mention the cost of expanding the administrative 
positions at the university to oversee all of this.
    I think most student-athletes, once they learn about the 
implications of employment status, strict contracts, filing 
taxes, more paperwork, and especially limited opportunities, 
will realize that they should focus efforts on improving the 
current system, not destroying it.
    I hope Congress can take action to protect the freedom of 
college student-athletes and preserve their unique status as 
both student and competitor. There would be, without objection, 
there being no further business, the Committee stands 
adjourned.
    [Whereupon, at 12:47 p.m., the subcommittees were 
adjourned.]

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