A National Labor Relations Board director ordered a union election for 15 Dartmouth men’s basketball players Monday in a ruling that found the players are employees of the university.
The result could be the first labor union for NCAA athletes.
The players in September filed a petition with the NLRB in September to unionize through Service Employees International Union Local 560. That petition followed a 2022 vote by Dartmouth student dining workers to unionize in an election overseen by the NLRB.
“[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, the petitioned-for basketball players are employees within the meaning of the (National Labor Relations) Act,” NLRB Region 1 Regional Director Laura Sacks wrote in the order filed Monday.
Sacks said that although the NLRB declined to exercise jurisdiction over Northwestern football players in a 2015 case in which the board did not decide whether the players were employees, nothing in the decision precludes a finding that players at private colleges and universities are employees under federal labor law.
Helping set up Monday’s decision was a United States Supreme Court decision in a 2021 case in which the court, including former Yale Daily News basketball reporter and Justice Brett Kavanaugh, found decided antitrust laws prohibit the NCAA from limiting its Division I schools from offering “education-related compensation or benefits” to student-athletes.
The ruling ushered in a slew of pending litigation against the NCAA and universities.
Dartmouth had argued men’s basketball players don’t meet the common law test for employment because the players don’t perform work in exchange for compensation.
Dartmouth had contended it generates no profit from its men’s basketball program and said no indicators of employment like W-2s, I-9s or paid time off exist. The school also contended basketball players don’t meet the common law test for employment because it doesn’t exercise adequate control over them, highlighting testimony that basketball players have missed practices in favor of academic pursuits and not been penalized.
SEIU Local 560 argued Dartmouth men’s basketball players meet the common law test for employment because the players receive compensation in return for providing basketball-related services to Dartmouth and are subject to Dartmouth’s control.
The union cited case law holding that commerce includes a transaction in which an athletic recruit exchanges labor and NIL (name, image and likeness) rights for a Division I scholarship because both parties expect economic gain from the exchange. The union also said Dartmouth exercises significant control over the players by designing and monitoring their summer workouts, requiring them to sign handbooks and scheduling their road trips such that each meal and sleep period occurs at the coaching staff’s discretion.
Dartmouth may appeal to the NLRB, a move that could lay the groundwork for a legal path that winds all the way to the Supreme Court – a process that could take years.
But in the meantime, the NLRB will conduct a secret ballot election among what it found to be employees on whether they wish to be represented for collective bargaining by SEIU Local 560.
The reach of Monday’s decision isn’t limited to Ivy League institutions.
Paul McDonald, counsel in Johnson v. NCAA, a case in which student-athletes have argued in federal court they are employees who should be paid for the time they spend related to those athletic activities, told Ivy Hoops Online he thinks the case will hold up.
“[I]t’s just incongruent that the student team manager is an employee, let alone student ticket-takers and student food concession workers at NCAA games, but deny that status to the indisputably more controlled, harder-working and indispensable athletes,” McDonald said.
AFL-CIO President Liz Shuler called the NLRB decision “game-changing” in a statement Tuesday.
“College athletes put their heart and soul into excelling for their schools, working long, grueling hours and risking bodily injury each and every day,” Shuler said. “These athletes, like so many other young workers, are standing together to improve their lives. The labor movement stands in firm solidarity with student worker-athletes seeking a voice on the job.”
The Ivy League should consider settling a lawsuit filed in the U.S. District Court for the District of Connecticut in March that has alleged the league not offering athletic scholarships violates the Sherman Antitrust Act by price-fixing, raising the net price of education that Ivy athletes pay and suppressing compensation for the athletic services they provide Ivy schools. Headwinds from courts and administrative agencies are strongly in favor of student-athletes.
Editor’s note: Richard Kent is consultant to Student Athlete NIL, a company that works to provide NIL opportunities to student-athletes.