On Feb. 5, 2024, the National Labor Relations Board’s (NLRB) Region 1 director in Trustees of Dartmouth College,1 found that members of the college’s men’s basketball team qualify as “employees” under Section 2(3) of the National Labor Relations Act (NLRA).
Background
The Board in 2015 considered another case regarding collegiate-level student athletes’ employment status: Northwestern University.2 In this case, the Board declined to assert jurisdiction and did not explicitly rule whether student athletes were “employees” under the Act.
One of the reasons cited by the Board for declining jurisdiction was that Northwestern was the only private university in the Big Ten Conference. All other colleges and universities in the Big Ten are public, and therefore not subject to the jurisdiction of the NLRB. Citing this fact, the Board explained that “asserting jurisdiction in this case would not serve to promote stability in labor relations.”
In December 2023, federal policymakers revisited college student athletes’ right to organize. U.S. Rep. Jamaal Bowman and U.S. Sen. Chris Murphy, Bernie Sanders, and Elizabeth Warren reintroduced the College Athlete Right to Organize Act (CARO). This was the second time CARO has been introduced, having stalled back in 2021.
Should this legislation pass, it would amend the NLRA and define all student athletes (whether of public or private institutions) as “employees” provided they receive some form of compensation directly related to their “participation in an intercollegiate sport.”3
Carmen Lopez , Marquette 2023, is an associate with Hawks Quindel, S.C., in Milwaukee, where she focuses on social security disability benefits as well as labor and employment matters.
The Decision in Trustees of Dartmouth College
The regional director’s decision in Trustees of Dartmouth makes it clear that “nothing in [the Northwestern] decision precludes the finding that players at private colleges and universities are employees under the Act.” Among the reasons given for the holding, the regional director explained that the term “employee” is defined broadly within the Act, and of the exceptions listed, neither “student” nor “athlete” is mentioned, leading to a strong presumption in favor of coverage.
Further, the regional director explained that Dartmouth’s basketball players perform work “which benefits Dartmouth.” Dartmouth protested that its basketball team technically operated at a loss, excluding revenue generated during “March Madness” (college basketball’s end-of-season invitational tournament). However, that argument received considerable pushback from the regional director, who reasoned that “the profitability of any given business does not affect the employee status of the individuals who perform work for that business.”
Moreover, reasoned the reginal director, the amount of control Dartmouth exercises over its players further tilts the scales in favor of a finding that the players were covered employees. While the regional director conceded that Dartmouth is subject to NCAA and Ivy League rules and restrictions, Dartmouth’s coaching staff “determines when the players will practice and play, as well as when they will review film, engage with alumni, or take part in other team-related activities…when and where the players will travel, eat, and sleep.” In addition, “[s]pecial permission is required … to even get a haircut during a trip.”
The regional director addressed compensation, as expected. Dartmouth basketball players do not receive athletic scholarships. Instead, the school’s Office of Financial Aid determines how much aid each student receives based on their own policies. Notwithstanding this somewhat atypical arrangement, the regional director concluded that Dartmouth’s basketball players receive compensation in the form of “equipment and apparel – including basketball shoes valued in excess of $1000 per player per year – as well as tickets to games, lodging, meals, and the benefits of Dartmouth’s Peak Performance program.”
Dartmouth argued that the clothing and equipment is provided “so that the students may play,” and that if something such as basketball shoes were to be considered payment, “the stars of the team” would get more equipment or apparel than those players who may be less accomplished.
The regional director did not find Dartmouth’s argument convincing, instead holding that “employee status is [not] tied to the size of one individual’s salary in relation to that of his colleagues.”
Furthermore, pursuant to NLRB precedent, compensation can come in various forms, and tying employee status to a specific method or amount of payment “contravenes the stated principles of the Act.”4
Dartmouth raised concerns that such a broad definition of “employee” could include “any student who participates in any extracurricular activity and receives need based financial aid.”
The regional director responded that it was unlikely that Dartmouth students participating in extracurricular activities, such as the school newspaper, must schedule their classes around their activities or miss class with any sort of regularity due to their journalistic commitments, as is the case with Dartmouth’s basketball team.
Ultimately, the regional director concluded that “[b]ecause Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform that work in exchange for compensation,” its basketball players are considered employees under the Act.
Future Considerations
The regional director’s decision could have broader implications across collegiate athletics. Precisely what those implications may be is currently unclear.
For now, several important milestones related to the Dartmouth decision remain:
First and foremost, the Dartmouth men’s basketball team must vote on whether they wish to be represented by Service Employees International Union, Local 560. The Dartmouth Election is currently scheduled to take place on March 5, 2024.
Dartmouth has the right to request a review of the regional director’s decision. At this time, Dartmouth requested an extension, which the Board granted. The new deadline is also set for March 5, 2024.
If the decision is appealed to the Board and they uphold the regional director’s decision, the outcome could influence other student athletes attending private universities or colleges to unionize.
While much in the Dartmouth case remains unknown, one thing is for certain: should Dartmouth’s basketball players vote to unionize and the Board uphold the regional director’s decision, the implications for collegiate athletics could prove seismic.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.
Endnotes
1Trustees of Dartmouth College, Case 01-RC-325633 (2024).
2Northwestern University, 362 NLRB 1350 (2015).
3See College Athlete Right to Organize Act, S. 3415, 118th Cong.
4Trustees of Dartmouth College at 20. Quoting WBAI Pacifica Found., 328 NLRB 1273 (1999).
