Essay

Expanding Democracy: The Case for Enfranchising Noncitizens in Local Elections

In the wake of recent state-led movements to restrict voting rights in the United States, New York City passed a law expanding local voting rights. Intro 1867-A defines municipal elections as the “designation, nomination[,] and election process for the offices of mayor, comptroller, public advocate, city council member, and borough president.” This law limits “municipal voters” to lawful permanent residents and noncitizens authorized to work in the United States who have been residents of New York City for at least thirty consecutive days by the date of a given election and who meet all other voting registration requirements under election law. Intro 1867-A was subsequently struck down on appeal on February 21, 2024, when a New York appeals court held that it violated the New York State Constitution. This Essay is the first to argue that Fossella v. Adams should be reversed by proposing a reading of the New York Constitution that permits enfranchising noncitizens at the local level and providing a policy-driven analysis that supports this framework. This examination is especially important since the Fossella challenge is not unique to New York; instead, the movement to enfranchise noncitizens at the local election level is rapidly growing nationwide. Markedly, a comparable law was recently challenged without success in the United States District Court for the District of Columbia on similar grounds. Thus, Intro 1867-A’s future is pivotal in shaping the landscape of noncitizen voting rights in local elections.

Introduction

In the wake of state-led movements to curtail voting rights in the United States, New York City boldly enacted a law expanding local voting rights to enfranchise eligible noncitizens. In January 2020, City Council member Ydanis Rodriguez introduced Intro 1867-A, which, after a decisive 33-14 City Council vote, became law in January 2022.1 1.Int. 1867-2020, N.Y.C. Council (2022), https://legistar.council.nyc.gov/LegislationDetail.‌aspx?ID=4313327&GUID=DF600BDA-B675-41D8-A8BD-282C38DC4C62 [https://perma.‌cc/SR3F-VJQZ].Show More Intro 1867-A created an uncommon novel class of “municipal voters” limited to (1) “lawful permanent residents” and (2) noncitizens “authorized to work” in the U.S. who (i) have been residents of New York City for at least thirty consecutive days before a given election and (ii) meet “all [other voting] qualifications” under “election law.”2 2.N.Y.C. Charter, ch. 46-A, § 1057-AA(a) (2022).Show More As a result, eligible noncitizens are permitted to vote in elections for municipal offices but are expressly prohibited from voting for any state or federal office, political party position, or on any state or federal ballot question.3 3.Id. (defining “municipal office” as “the offices of mayor, public advocate, comptroller, borough president, and council member”); id. § 1057-RR.Show More

This law stands out as unusual because it meaningfully increases New York State’s total number of voters by enfranchising approximately 800,000 noncitizens directly affected by municipal policies, thus empowering them with a voice they would not have otherwise possessed.4 4.Els de Graauw, New York City Restores Local Voting Rights for Noncitizens, EUI Global Citizenship Observatory (Feb. 8, 2022), https://globalcit.eu/new-york-city-restores-local-vot‌ing-rights-for-noncitizens/ [https://perma.cc/6MDT-KMGN].Show More New York City is now the largest U.S. city to extend local voting rights to noncitizens, joining other municipalities including those in California, Maryland, and Vermont.5 5.Id.Show More

This significant change sparked immediate controversy. Two days after Intro 1867-A became law, a group of plaintiffs—including seventeen U.S. citizens, the New York Republican State Committee, and the Republican National Committee—filed a complaint in the New York Supreme Court challenging the validity of the law under the New York Constitution, New York Election Law, and the New York Municipal Home Rule Law.6 6.Fossella v. Adams, 206 N.Y.S.3d 611, 618 (2024).Show More The complaint alleged that Intro 1867-A would dilute U.S. citizens’ votes, including those of the voter plaintiffs, by introducing new voters likely to impact election outcomes.7 7.Id. at 619.Show More It also argued that the legislation would require the officeholder plaintiffs to revise their campaign tactics to account for this “sizeable change” in the electorate’s makeup and compel “the political party plaintiffs to ‘adjust their strategies’” to elect Republicans in New York.8 8.Id.Show More On June 27, 2022, the trial court granted the plaintiffs’ permanent injunction request in Fossella v. Adams, holding that the law violated the New York Constitution, New York Election Law, and the New York Municipal Home Rule Law.9 9.Id. at 618.Show More

The defendants subsequently challenged this injunction, and on February 21, 2024, a New York appeals court ruled that the lower court had correctly invalidated Intro 1867-A, determining it contravened the New York Constitution and the Municipal Home Rule Law.10 10.Id.Show More However, the appeals court identified an error in the trial court’s decision to void the legislation based on a violation of the New York Election Law, leading to a modification of the order and its return to the Supreme Court of Richmond County for entry of judgment.11 11.Id. at 634.Show More

In striking down the law as unconstitutional under Article II, Section 1 of the New York Constitution, the court focused on two inquiries: (1) whether “citizen” refers to U.S. citizens or New York citizens, and (2) whether “every election for all officers elected by the people” encompasses both municipal and statewide elections, or statewide elections exclusively.12 12.Id. at 626–27. The court also discussed the plaintiffs’ standing and Intro 1867-A’s constitutionality under New York Election Law and the New York Municipal Home Rule Law, but these issues are beyond the scope of this Essay.Show More The court adopted a narrow construction of the term “citizen” as used in the New York Constitution, interpreting it to refer only to U.S. citizens, thus excluding noncitizens.13 13.Id. at 627.Show More Further, it concluded that the plain language of Article II, Section 1 indicates that the clause covers both municipal and statewide elections, noting the lack of specific language to restrict its application to statewide elections only.14 14.Id.Show More The ruling has now been appealed to the state’s highest court.15 15.Emily Ngo, New York City Council Appeals Decision to Strike Down Non-Citizen Voting Law, Politico (Mar. 25, 2024, 1:57 PM), https://www.politico.com/news/2024/03/25/‌new-york-city-council-appeals-decision-to-strike-down-non-citizen-voting-law-00148854 [https://perma.cc/3AKU-8NX3].Show More

This Essay is the first to argue that Fossella v. Adams was wrongly decided and should be reversed by the New York Court of Appeals. Part I surveys the historical landscape of noncitizen suffrage in the United States. Part II posits a framework that supports reading the New York Constitution as enfranchising noncitizens at the local election level. Part III explores policy considerations that support this line of reasoning and refutes some of the concerns mentioned in Fossella.

These analyses hold particular importance given that the challenge posed by Fossella is not unique to New York; rather, the push for noncitizen enfranchisement at the local election level represents a rapidly growing trend across the United States. Notably, a comparable municipal law was challenged on vote-dilution grounds and upheld in the United States District Court for the District of Columbia.16 16.See, e.g., Hall v. D.C. Bd. of Elections, No. 23-cv-01261, 2024 WL 1212953 (D.D.C. Mar. 20, 2024). In Hall, petitioners challenged D.C. Act 26-640, which eliminates the prior citizenship requirement for voting in municipal elections, and argued that this law dilutes the vote of U.S. citizen voters in the District by enfranchising noncitizens, including undocumented ones, who do not have a fundamental right to vote in the United States nor a constitutional right to govern the United States. Id. at *3–5. Intro-1867-A differs from D.C. Act 26-640 as it does not apply to the estimated 500,000 undocumented immigrants residing in New York City. On March 20, 2024, Hall was dismissed on standing grounds, so the D.C. Act was upheld. Hall, 2024 WL 1212953, at *1. However, the U.S. House of Representatives recently voted to block Act 26-640, so it will not take effect. Meagan Flynn, House Votes to Block Noncitizen Voting in D.C. Elections—Again, Wash. Post (May 23, 2024), https://www.‌washingtonpost.com/dc-md-va/2024/05/23/house-vote-dc-noncitizen-voting/ [https://perma.‌cc/L7NR-PT8A].Show More Success on appeal is possible, as evidenced by similar laws that, despite being overturned at the lower court level, have later been upheld.17 17.In 2018, San Francisco implemented a law permitting eligible noncitizens to participate in school board elections. This law was overturned in July 2022 when the San Francisco Superior Court ruled that it contravened the California Constitution. See Lacy v. San Francisco, No. CPF-22-517714, slip op. at 2, 7 (Cal. Super. Ct. July 29, 2022). However, in 2023, an appellate court reversed and remanded, finding that charter cities possess the authority under the California Constitution to allow noncitizens to vote in school board elections. See Lacy v. San Francisco, 312 Cal. Rptr. 3d 391, 398, 413 (Cal. Ct. App. 2023).Show More Although the outcomes of such cases will ultimately depend on their respective state laws, this Essay’s analysis of Fossella provides a workable framework pivotal in shaping the ongoing national project of noncitizen voting rights in local elections.

  1.  Int. 1867-2020, N.Y.C. Council (2022), https://legistar.council.nyc.gov/LegislationDetail.‌aspx?ID=4313327&GUID=DF600BDA-B675-41D8-A8BD-282C38DC4C62 [https://perma.‌cc/SR3F-VJQZ]. ↑
  2.  N.Y.C. Charter, ch. 46-A, § 1057-AA(a) (2022). ↑
  3.  Id. (defining “municipal office” as “the offices of mayor, public advocate, comptroller, borough president, and council member”); id. § 1057-RR. ↑
  4.  Els de Graauw, New York City Restores Local Voting Rights for Noncitizens, EUI Global Citizenship Observatory (Feb. 8, 2022), https://globalcit.eu/new-york-city-restores-local-vot‌ing-rights-for-noncitizens/ [https://perma.cc/6MDT-KMGN]. ↑
  5.  Id. ↑
  6.  Fossella v. Adams, 206 N.Y.S.3d 611, 618 (2024). ↑
  7.  Id. at 619. ↑
  8.  Id. ↑
  9.  Id. at 618. ↑
  10.  Id. ↑
  11.  Id. at 634. ↑
  12.  Id. at 626–27. The court also discussed the plaintiffs’ standing and Intro 1867-A’s constitutionality under New York Election Law and the New York Municipal Home Rule Law, but these issues are beyond the scope of this Essay. ↑
  13.  Id. at 627. ↑
  14.  Id. ↑
  15.  Emily Ngo, New York City Council Appeals Decision to Strike Down Non-Citizen Voting Law, Politico (Mar. 25, 2024, 1:57 PM), https://www.politico.com/news/2024/03/25/‌new-york-city-council-appeals-decision-to-strike-down-non-citizen-voting-law-00148854 [https://perma.cc/3AKU-8NX3]. ↑
  16.  See, e.g., Hall v. D.C. Bd. of Elections, No. 23-cv-01261, 2024 WL 1212953 (D.D.C. Mar. 20, 2024). In Hall, petitioners challenged D.C. Act 26-640, which eliminates the prior citizenship requirement for voting in municipal elections, and argued that this law dilutes the vote of U.S. citizen voters in the District by enfranchising noncitizens, including undocumented ones, who do not have a fundamental right to vote in the United States nor a constitutional right to govern the United States. Id. at *3–5. Intro-1867-A differs from D.C. Act 26-640 as it does not apply to the estimated 500,000 undocumented immigrants residing in New York City. On March 20, 2024, Hall was dismissed on standing grounds, so the D.C. Act was upheld. Hall, 2024 WL 1212953, at *1. However, the U.S. House of Representatives recently voted to block Act 26-640, so it will not take effect. Meagan Flynn, House Votes to Block Noncitizen Voting in D.C. Elections—Again, Wash. Post (May 23, 2024), https://www.‌washingtonpost.com/dc-md-va/2024/05/23/house-vote-dc-noncitizen-voting/ [https://perma.‌cc/L7NR-PT8A]. ↑

  17.  In 2018, San Francisco implemented a law permitting eligible noncitizens to participate in school board elections. This law was overturned in July 2022 when the San Francisco Superior Court ruled that it contravened the California Constitution. See Lacy v. San Francisco, No. CPF-22-517714, slip op. at 2, 7 (Cal. Super. Ct. July 29, 2022). However, in 2023, an appellate court reversed and remanded, finding that charter cities possess the authority under the California Constitution to allow noncitizens to vote in school board elections. See Lacy v. San Francisco, 312 Cal. Rptr. 3d 391, 398, 413 (Cal. Ct. App. 2023). ↑

Standing Shoulder Pad to Shoulder Pad: Collective Bargaining in College Athletics

Responding to the professionalization of their billion-dollar industry, college athletes have embraced collective bargaining as an avenue for addressing their grievances with universities and the National Collegiate Athletics Association (NCAA). The movement toward unionization has culminated in two cases: an unfair labor practice charge from the University of Southern California’s (USC) football and basketball teams and a representation petition from Dartmouth College’s men’s basketball team. These filings with the National Labor Relations Board (NLRB) will determine whether college athletes are “employees” under the National Labor Relations Act (NLRA). If the NLRA covers them, then they will be able to unionize and collectively bargain under federal law. This Essay advances the debate surrounding college athletes’ status by arguing that the NLRB should exercise its rulemaking power to establish a comprehensive standard for determining whether particular athletes qualify as “employees.” It arrives at this conclusion after demonstrating how USC’s and Dartmouth’s athletes likely pass the statutory test for employee status. Since the NLRB explicitly considers policy concerns as it decides when to extend jurisdiction, the Board will need to determine whether the NLRA should cover college athletes and, if so, how coverage should be delineated. Given the need to protect athletes while promoting stability in labor relations, the NLRB should craft clear guidelines through rulemaking instead of piecemeal adjudication. The Essay concludes by offering a model rule that illustrates how the NLRB could formulate and implement a framework that Board agents can apply to athletes across NCAA divisions and sports.

Introduction

Far attenuated from its original status as an extracurricular activity, college athletics has evolved into an industry that increasingly eschews amateurism for professionalization. In 2019, Division I universities’ revenue exceeded $15 billion.1 1.See Andrew Zimbalist, Analysis: Who Wins With College Sports?, Econofact (Jan. 22, 2023), https://econofact.org/who-wins-with-college-sports [https://perma.cc/W9KG-3V42].Show More Billion-dollar television deals have replaced traditional rivalries with new conferences that span the country.2 2.See Billy Witz, Conferences Are Changing. The Sport Is, Too., N.Y. Times (Sept. 1, 2023), https://www.nytimes.com/2023/09/01/sports/ncaafootball/college-football-preview-re‌alignment-big12-bigten-acc-pac12-bigten.html [https://perma.cc/W9KG-3V42].Show More Deion Sanders and other coaches treat their athletes like professional free agents, using the transfer portal to unilaterally force transfers and overhaul rosters.3 3.See Mike McDaniel, Colorado Players in Transfer Portal Detail Troubling Team Dynamic Under Deion Sanders, Sports Illustrated (Apr. 26, 2023), https://www.si.com/college/2023/‌04/26/colorado-players-transfer-portal-detail-troubling-team-dynamic-under-deion-sanders [https://perma.cc/N2PN-2VMY].Show More Meanwhile, in NCAA v. Alston,4 4.141 S. Ct. 2141 (2021).Show More the Supreme Court ruled that the NCAA cannot cite “amateurism” as a justification for its evasion of antitrust law and its compensation restrictions.5 5.See id. at 2162–63 (“Firms deserve substantial latitude to fashion agreements that serve legitimate business interests—agreements that may include efforts aimed at introducing a new product into the marketplace. But none of that means a party can relabel a restraint as a product feature and declare it ‘immune from § 1 scrutiny.’” (internal citation omitted) (quoting Am. Needle, Inc. v. NFL, 560 U.S. 183, 199 n.7 (2010)).Show More In his concurrence, Justice Brett Kavanaugh rejected the traditional conception of college athletics, asserting that “the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of the product.”6 6.See id. at 2168–69 (Kavanaugh, J., concurring) (arguing that the Court’s ruling should be extended to strike down the NCAA’s entire apparatus of compensation restrictions).Show More The NCAA and universities have responded to the Court’s rebuke by adopting name, image, and likeness (NIL) policies that further diminish amateurism as college sports’ lodestar.7 7.See Andrew Brandt, Business of Football: The Supreme Court Sends a Message to the NCAA, Sports Illustrated (June 29, 2021), https://www.si.com/nfl/2021/06/29/business-of-football-supreme-court-unanimous-ruling [https://perma.cc/N2PN-2VMY].Show More

As college athletics has become more professionalized, players’ grievances with their universities and the NCAA remain entrenched and unaddressed. Even though football and basketball players’ performances generate revenue for “Power Five” conference schools, those institutions effectively divert any potential compensation for players toward coaches and administrators.8 8.See Craig Garthweite, Jordan Keener, Matthew J. Notowidigdo & Nicole F. Ozminkowski, Who Profits From Amateurism? Rent-Sharing in Modern College Sport 4–6, 26–28 (Nat’l Bureau of Econ. Rsch., Working Paper No. 27734, 2020), https://www.nber.org/papers/w277‌34 [https://perma.cc/QL9N-F9NV].Show More Annual wage estimates for these athletes exceed six figures, highlighting the amount of wealth players are denied despite their labor and athletic performance.9 9.See id. at 6, 49–50.Show More Some athletes may secure name, image, and likeness (NIL) deals that alleviate their lack of compensation. However, the median NIL deal in 2021 was worth only $53 per athlete.10 10.SeeErica Hunzinger, One Year of NIL: How Much Have Athletes Made?, Associated Press (July 6, 2022, 4:57 PM), https://apnews.com/article/college-football-sports-basketball-6a4a3270d02121c1c37869fb54888ccb [https://perma.cc/6ZZ4-XSAV].Show More Although NCAA leaders are planning to permit some form of direct compensation,11 11.See Ralph D. Russo, NCAA President Charlie Baker Calls for New Tier of Division I Where Schools Can Pay Athletes, Associated Press(Dec. 5, 2023, 4:48 PM), https://apnews.‌com/article/ncaa-baker-nil-c26542c528df277385fea7167026dbe6 [https://perma.cc/D6A7-Y‌AL8]. Virginia also amended its NIL laws in April 2024 to facilitate direct compensation by universities for the “use” of a student-athlete’s “name, image, or likeness,” which could spur further policy changes by the NCAA and other states. Act of Apr. 17, 2024, ch. 837, 2024 Va. Legis. Serv. 837 (West).Show More these policies fail to address players’ health and safety concerns. Like workers in other industries, football players and other athletes have highlighted the lack of proper medical care and insurance benefits as top reasons for organizing.12 12.See Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights: Before the Subcomm. on Innovation, Data, & Com. of the H. Comm. on Energy & Com., 118th Cong. 2–7 (2023) (written testimony of Jason Stahl, Executive Director, College Football Players Association) [hereinafter Taking the Buzzer Beater]; see also The Real News Network, College Football Is Dangerous. Unions Can Fix It., YouTube (Sept. 20, 2023) (featuring Stahl describing the primacy of health and safety concerns among football players—from 12:59–14:19), https://www.youtube.com/watch?v=GoCnmzewbdg [https://per‌ma.cc/K326-FC5M].Show More The formation of transcontinental athletic conferences will only heighten these burdens on athletes across all sports, as the new travel requirements will likely hinder athletes’ recovery, academic performance, and mental health.13 13.See Amanda L. Paule-Koba, It Affects Everything We Do: Collegiate Athletes’ Perceptions of Sport-Related Travel, J. Study of Sports & Athletes in Educ. 1, 11–14 (Dec. 2021), https://doi.org/10.1080/19357397.2021.2018637 [https://perma.cc/4FX9-E468].Show More Athletes are thus suffering from decisions that universities, athletic conferences, and the NCAA made without player input.

Collective bargaining has emerged as a mechanism for players to advocate for improved conditions and participation in policymaking. Groups of current and former athletes, like the National College Players Association (NCPA) and College Football Players Association (CFBPA), have worked alongside labor unions to organize teams.14 14.See About the NCPA, Nat’l Coll. Players Ass’n, https://www.ncpanow.org/about-us [https://perma.cc/3NJS-WWSE] (last visited Mar. 25, 2024); Taking the Buzzer-Beater, supra note 12, at 2–6, 10.Show More In Northwestern University,15 15.362 N.L.R.B. 1350 (2015).Show More the NLRB declined to hold an election for Northwestern’s football players by refusing to extend jurisdiction over them,16 16.See id. at 1352.Show More yet the Board did not categorically exclude college athletes from NLRA coverage.17 17.See id. at 1355.Show More As a result, momentum toward unionization has accelerated. The CFBPA emerged from player-driven advocacy in 2020 with the goal of organizing chapters at different universities to advocate for collective bargaining.18 18.See Taking the Buzzer-Beater, supra note 12, at 2–6, 10; The Real News Network, supra note 12.Show More Congressional representatives introduced legislation in 2021 to codify the right for college athletes to collectively bargain,19 19.See College Athlete Right to Organize Act, S. 1929, 117th Cong. (2021).Show More and even athletic directors have endorsed some form of bargaining power for players.20 20.Name, Image, and Likeness and the Future of College Sports: Before the S. Comm. on Jud., 118th Cong. 3–4 (2023) (written testimony of Jack Swarbrick, Vice President & James E. Rohr Director of Athletics, University of Notre Dame).Show More

Years of organizing and advocacy have coalesced into two pending cases that could establish coverage for student athletes under the NLRA.21 21.On April 18, 2024, the College Basketball Players Association filed an unfair labor practice charge with the NLRB on behalf of players at the University of Notre Dame. This matter could develop in another case, pending the NLRB regional office’s investigation and subsequent proceedings. Unfair Labor Complaint Filed Against Notre Dame Over Athletes, Associated Press (Apr. 18, 2024, 10:07 PM), https://apnews.com/article/notre-dame-labor-complaint-athletes-c8db80b033bae8c930a32f2b21bf312d [https://perma.cc/U6H2-75NU]. Although other charges and matters relating to college athletes may be pending in NLRB regional offices, this Essay only addresses the two central cases in front of the Board and its administrative judges.Show More In 2023, the NLRB issued an unfair labor practice complaint against USC, the Pac-12 athletic conference, and the NCAA on behalf of USC’s football and basketball players.22 22.See Complaint & Notice of Hearing, Univ. of S. Cal., Case No. 31-CA-290326 (NLRB Div. of Judges argued Nov. 7, 2023).Show More Meanwhile, the men’s basketball team at Dartmouth filed for a union election.23 23.See Signed RC Petition, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (filed Sept. 13, 2023).Show More After the NLRB regional director ruled in February 2024 that the Dartmouth election could proceed,24 24.See Decision & Direction of Election at 22, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 5, 2024) [hereinafter Decision and Direction of Election].Show More the players voted 13-2 to unionize.25 25.See Jesse Dougherty, After a Historic Union Vote at Dartmouth, What’s Next for College Sports?, Wash. Post (Mar. 5, 2024, 1:20 PM), https://www.washingtonpost.com/sports/2024/‌03/05/dartmouth-mens-basketball-union/ [https://perma.cc/253M-5XWF].Show More Dartmouth has appealed the official’s determination, setting the stage for the Board to consider the issue.26 26.See Trs. of Dartmouth Coll.’s Request for Rev. of the Reg’l Dir.’s Decision and Direction of Election at 1, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 2024) [hereinafter Trs. of Dartmouth College’s Request for Review]. Sian Beilock, President of Dartmouth College, has also declared that Dartmouth will “go all the way to the Supreme Court if that’s what it takes” to “prevent this misguided development.” Sian L. Beilock, Opinion, Dartmouth Will Oppose Its Basketball Team Union, Wall St. J. (Apr. 12, 2024, 1:47 PM), https://www.wsj.com/articles/dartmouth-will-bust-its-basketball-union-colle‌ge-sports-labor-5eb1fc1e [https://perma.cc/BRJ2-FRMX].Show More If the NLRB upholds this decision and finds that these athletes are “employees” under the NLRA, the Board would extend the Act’s protections to college athletes and enable unionization under federal law.

Commentators have long argued about whether college athletes, particularly football players, are “employees” under the NLRA.27 27.See, e.g., Joshua Hernandez, The Largest Wave in the NCAA’s Ocean of Change: The “College Athletes are Employees” Issue Reevaluated, 33 Marq. Sports L. Rev. 781, 783 (2023) (arguing that college athletes are statutorily “employees” but cautioning against coverage on policy grounds); César F. Rosado Marzán & Alex Tillett-Saks, Work, Study, Organize!: Why the Northwestern University Football Players Are Employees Under the National Labor Relations Act, 32 Hofstra Lab. & Emp. L.J. 301, 305–06 (2015) (arguing that the NLRB should permit the Northwestern football players’ representation election to proceed because they are “employees” under the NLRA); Stephen L. Willborn, College Athletes as Employees: An Overflowing Quiver, 69 U. Miami L. Rev. 65, 65 (2014) (asserting that an affirmative finding of employee status under the NLRA or other employment statutes is “inevitable” due to the numerosity of interested parties and applicable laws).Show More Some scholars have even addressed the issue post-Alston.28 28.See, e.g., Hernandez, supra note 27, at 796–97; Amanda L. Jones, The Dawn of a New Era: Antitrust Law vs. the Antiquated NCAA Compensation Model Perpetuating Racial Injustice, 116 Nw. U. L. Rev. 1319, 1324–26 (2022) (advocating for Congress to pass legislation to permit college athletes to collectively bargain); John Wolohan, A Reexamination of College Athletes: Are Athletes Students or Employees?,53 U. Mem. L. Rev. 835, 838 (2023) (applying the “economic reality” test to college athletes in light of Alston and recent General Counsel memos); Jennifer A. Shults, If at First You Don’t Succeed, Try, Try Again: Why College Athletes Should Keep Fighting for “Employee” Status, 56 Colum. J.L. & Soc. Probs. 451, 483 (2023) (arguing that Alston has helped bridge the gap between college athletes and employee status under the Fair Labor Standards Act and the NLRA).Show More However, scholarship has not accounted for these new cases and the questions they raise for all college athletes. Increasing momentum toward “employee” status warrants a forward-looking analysis of whether the NLRB should expand coverage to college athletes across all sports and divisions and how it could establish a comprehensive standard for the industry.

This Essay answers these questions by advocating for the NLRB to issue a formal rule that establishes a comprehensive standard for determining the NLRA’s coverage of athletes across all sports and divisions. This proposal emerges from an analysis of current cases before the Board and the challenge of establishing a clear rule through the adjudication of these disputes. Part I briefly summarizes the arguments presented by the parties in each case. Part II then applies the NLRA’s statutory test and concludes that each group of athletes qualifies as employees under the Act’s language. Part III considers the NLRB’s policy approach to labor law coverage and demonstrates that policy considerations do not warrant coverage exemptions in these cases. However, these policies also show how difficult it will be to develop a comprehensive standard—one that can apply to all athletes—through the adjudication of these cases. Part IV highlights this challenge and argues that the NLRB should exercise its rulemaking authority to establish a standard that can apply to all athletes. Part V concludes the Essay by presenting a model rule that extends coverage to athletes who need NLRA protections.

  1.  See Andrew Zimbalist, Analysis: Who Wins With College Sports?, Econofact (Jan. 22, 2023), https://econofact.org/who-wins-with-college-sports [https://perma.cc/W9KG-3V42]. ↑

  2.  See Billy Witz, Conferences Are Changing. The Sport Is, Too., N.Y. Times (Sept. 1, 2023), https://www.nytimes.com/2023/09/01/sports/ncaafootball/college-football-preview-re‌alignment-big12-bigten-acc-pac12-bigten.html [https://perma.cc/W9KG-3V42]. ↑

  3.  See Mike McDaniel, Colorado Players in Transfer Portal Detail Troubling Team Dynamic Under Deion Sanders, Sports Illustrated (Apr. 26, 2023), https://www.si.com/college/2023/‌04/26/colorado-players-transfer-portal-detail-troubling-team-dynamic-under-deion-sanders [https://perma.cc/N2PN-2VMY]. ↑

  4.  141 S. Ct. 2141 (2021). ↑

  5.  See id. at 2162–63 (“Firms deserve substantial latitude to fashion agreements that serve legitimate business interests—agreements that may include efforts aimed at introducing a new product into the marketplace. But none of that means a party can relabel a restraint as a product feature and declare it ‘immune from § 1 scrutiny.’” (internal citation omitted) (quoting Am. Needle, Inc. v. NFL, 560 U.S. 183, 199 n.7 (2010)). ↑

  6.  See id. at 2168–69 (Kavanaugh, J., concurring) (arguing that the Court’s ruling should be extended to strike down the NCAA’s entire apparatus of compensation restrictions). ↑

  7.  See Andrew Brandt, Business of Football: The Supreme Court Sends a Message to the NCAA, Sports Illustrated (June 29, 2021), https://www.si.com/nfl/2021/06/29/business-of-football-supreme-court-unanimous-ruling [https://perma.cc/N2PN-2VMY]. ↑

  8.  See Craig Garthweite, Jordan Keener, Matthew J. Notowidigdo & Nicole F. Ozminkowski, Who Profits From Amateurism? Rent-Sharing in Modern College Sport 4–6, 26–28 (Nat’l Bureau of Econ. Rsch., Working Paper No. 27734, 2020), https://www.nber.org/papers/w277‌34 [https://perma.cc/QL9N-F9NV]. ↑

  9.  See id. at 6, 49–50. ↑

  10.  See Erica Hunzinger, One Year of NIL: How Much Have Athletes Made?, Associated Press (July 6, 2022, 4:57 PM), https://apnews.com/article/college-football-sports-basketball-6a4a3270d02121c1c37869fb54888ccb [https://perma.cc/6ZZ4-XSAV]. ↑

  11.  See Ralph D. Russo, NCAA President Charlie Baker Calls for New Tier of Division I Where Schools Can Pay Athletes, Associated Press

     

    (Dec. 5, 2023, 4:48 PM), https://apnews.‌com/article/ncaa-baker-nil-c26542c528df277385fea7167026dbe6 [https://perma.cc/D6A7-Y‌AL8]. Virginia also amended its NIL laws in April 2024 to facilitate direct compensation by universities for the “use” of a student-athlete’s “name, image, or likeness,” which could spur further policy changes by the NCAA and other states. Act of Apr. 17, 2024, ch. 837, 2024 Va. Legis. Serv. 837 (West). ↑

  12.  See Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights: Before the Subcomm. on Innovation, Data, & Com. of the H. Comm. on Energy & Com., 118th Cong. 2–7 (2023) (written testimony of Jason Stahl, Executive Director, College Football Players Association) [hereinafter Taking the Buzzer Beater]; see also The Real News Network, College Football Is Dangerous. Unions Can Fix It., YouTube (Sept. 20, 2023) (featuring Stahl describing the primacy of health and safety concerns among football players—from 12:59–14:19), https://www.youtube.com/watch?v=GoCnmzewbdg [https://per‌ma.cc/K326-FC5M]. ↑

  13.  See Amanda L. Paule-Koba, It Affects Everything We Do: Collegiate Athletes’ Perceptions of Sport-Related Travel

    ,

    J. Study of Sports & Athletes in Educ

    .

    1, 11–14 (Dec. 2021), https://doi.org/10.1080/19357397.2021.2018637 [https://perma.cc/4FX9-E468]. ↑

  14.  See About the NCPA, Nat’l Coll. Players Ass’n, https://www.ncpanow.org/about-us [https://perma.cc/3NJS-WWSE] (last visited Mar. 25, 2024); Taking the Buzzer-Beater, supra note 12, at 2–6, 10. ↑

  15.  362 N.L.R.B. 1350 (2015). ↑

  16.  See id. at 1352. ↑

  17.  See id. at 1355. ↑

  18.  See Taking the Buzzer-Beater, supra note 12, at 2–6, 10; The Real News Network, supra note 12. ↑

  19.  See College Athlete Right to Organize Act, S. 1929, 117th Cong. (2021). ↑

  20.  Name, Image, and Likeness and the Future of College Sports: Before the S. Comm. on Jud., 118th Cong. 3–4 (2023) (written testimony of Jack Swarbrick, Vice President & James E. Rohr Director of Athletics, University of Notre Dame). ↑

  21.  On April 18, 2024, the College Basketball Players Association filed an unfair labor practice charge with the NLRB on behalf of players at the University of Notre Dame. This matter could develop in another case, pending the NLRB regional office’s investigation and subsequent proceedings. Unfair Labor Complaint Filed Against Notre Dame Over Athletes, Associated Press (Apr. 18, 2024, 10:07 PM), https://apnews.com/article/notre-dame-labor-complaint-athletes-c8db80b033bae8c930a32f2b21bf312d [https://perma.cc/U6H2-75NU]. Although other charges and matters relating to college athletes may be pending in NLRB regional offices, this Essay only addresses the two central cases in front of the Board and its administrative judges. ↑

  22.  See Complaint & Notice of Hearing, Univ. of S. Cal., Case No. 31-CA-290326 (NLRB Div. of Judges argued Nov. 7, 2023). ↑

  23.  See Signed RC Petition, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (filed Sept. 13, 2023). ↑

  24.  See Decision & Direction of Election at 22, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 5, 2024) [hereinafter Decision and Direction of Election]. ↑

  25.  See Jesse Dougherty, After a Historic Union Vote at Dartmouth, What’s Next for College Sports?, Wash. Post (Mar. 5, 2024, 1:20 PM), https://www.washingtonpost.com/sports/2024/‌03/05/dartmouth-mens-basketball-union/ [https://perma.cc/253M-5XWF]. ↑

  26.  See Trs. of Dartmouth Coll.’s Request for Rev. of the Reg’l Dir.’s Decision and Direction of Election at 1, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 2024) [hereinafter Trs. of Dartmouth College’s Request for Review]. Sian Beilock, President of Dartmouth College, has also declared that Dartmouth will “go all the way to the Supreme Court if that’s what it takes” to “prevent this misguided development.” Sian L. Beilock, Opinion, Dartmouth Will Oppose Its Basketball Team Union, Wall St. J. (Apr. 12, 2024, 1:47 PM), https://www.wsj.com/articles/dartmouth-will-bust-its-basketball-union-colle‌ge-sports-labor-5eb1fc1e [https://perma.cc/BRJ2-FRMX]. ↑

  27.  See, e.g., Joshua Hernandez, The Largest Wave in the NCAA’s Ocean of Change: The “College Athletes are Employees” Issue Reevaluated, 33 Marq. Sports L. Rev. 781, 783 (2023) (arguing that college athletes are statutorily “employees” but cautioning against coverage on policy grounds); César F. Rosado Marzán & Alex Tillett-Saks, Work, Study, Organize!: Why the Northwestern University Football Players Are Employees Under the National Labor Relations Act, 32 Hofstra Lab. & Emp. L.J

    .

    301, 305–06 (2015) (arguing that the NLRB should permit the Northwestern football players’ representation election to proceed because they are “employees” under the NLRA); Stephen L. Willborn, College Athletes as Employees: An Overflowing Quiver, 69 U. Miami L. Rev. 65, 65 (2014) (asserting that an affirmative finding of employee status under the NLRA or other employment statutes is “inevitable” due to the numerosity of interested parties and applicable laws). ↑

  28.  See, e.g., Hernandez, supra note 27, at 796–97; Amanda L. Jones, The Dawn of a New Era: Antitrust Law vs. the Antiquated NCAA Compensation Model Perpetuating Racial Injustice, 116 Nw. U. L. Rev. 1319, 1324–26 (2022) (advocating for Congress to pass legislation to permit college athletes to collectively bargain); John Wolohan, A Reexamination of College Athletes: Are Athletes Students or Employees?, 53 U. Mem. L. Rev. 835, 838 (2023) (applying the “economic reality” test to college athletes in light of Alston and recent General Counsel memos); Jennifer A. Shults, If at First You Don’t Succeed, Try, Try Again: Why College Athletes Should Keep Fighting for “Employee” Status, 56 Colum. J.L. & Soc. Probs

    .

    451, 483 (2023) (arguing that Alston has helped bridge the gap between college athletes and employee status under the Fair Labor Standards Act and the NLRA). ↑

A Response to David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law

Introduction

In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private law, including not just property and contract law, but also torts.1 1.See David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022).Show More In recent papers, Samuel Scheffler and I have made similar arguments, though we have modestly departed from their views.2 2.Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Private Law and Rawls’s Principles of Justice, in Liberalism and Distributive Justice 167, 168 (2018) (arguing that Rawls’s principles apply to the private law).Show More I contend that, while the difference principle applies to much of the private law of property and contract, it does not apply to all tort law. Rather, in tort law, the difference principle applies primarily to economic torts in unjust economic systems that do not satisfy Rawls’s difference principle in the first place.3 3.Freeman, supra note 2, at 191–93 (arguing that in an unjust economy designed to maximally benefit the more rather than the less advantaged, the application of the difference principle to economic torts is a proper corrective to vast inequalities and economic injustices).Show More Blankfein-Tabachnick and Kordana (hereinafter “the Authors”) contest my argument, as well as my contention that Rawls’s difference principle requires maximizing the position of society’s less advantaged relative to the more advantaged, not their absolute position.4 4.Blankfein-Tabachnick & Kordana, supra note 1, at 1683–87 (contending that Rawls’s difference principle is “a maximizing and consequentialist theory, if a constrained one,” and not, as I contend, “an intra-schemic relational principle” of reciprocity that is nonconsequentialist and nonmaximizing).Show More After a brief summary of my position, I discuss why I believe the difference principle, under Rawls’s final interpretation of it, is often not suitable for consistent application in determining personal tort liability and remedies, even though the principle can play a significant role in economic torts involving the violation of economic rights and liberties. I also discuss why the difference principle is best understood to require society to maximize the relative, not absolute, position of the least advantaged. I conclude with some remarks on Rawls’s own reservations regarding courts’ interpretation and enforcement of the difference principle, or any principle that structures the economy, including economic efficiency and utilitarian wealth maximization.

  1.  See David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022). ↑
  2.  Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Private Law and Rawls’s Principles of Justice, in Liberalism and Distributive Justice 167, 168 (2018) (arguing that Rawls’s principles apply to the private law). ↑
  3.  Freeman, supra note 2, at 191–93 (arguing that in an unjust economy designed to maximally benefit the more rather than the less advantaged, the application of the difference principle to economic torts is a proper corrective to vast inequalities and economic injustices). ↑

  4.  Blankfein-Tabachnick & Kordana, supra note 1, at 1683–87 (contending that Rawls’s difference principle is “a maximizing and consequentialist theory, if a constrained one,” and not, as I contend, “an intra-schemic relational principle” of reciprocity that is nonconsequentialist and nonmaximizing). ↑

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