College athletics have been in the news a lot lately–and it’s not just because of the annual March Madness tournament, where collegiate basketball teams from all over the country battle their way through a bracket to determine a national champion.
What has taken center court recently—pertaining to the National Collegiate Athletic Association (NCAA) in particular—has been the charge against amateurism, a model that has, up until now, been the bedrock of college sports. While the NCAA has historically enforced strict rules meant to block student-athletes from profiting off their performances, many have critiqued this system that kicks out billions of dollars in revenue to schools, coaches, conferences, and the NCAA itself, while not allowing the athletes to profit in proportion to the revenue that they themselves help drive.
The status of amateurism in college sports is facing a full-court press after being forced to make rule changes regarding athletes’ ability to profit off their own name, image, and likeness (NIL), while also defending against a variety of other legal challenges threatening to crash the amateur business model of college sports. One of these legal disputes is whether student-athletes should be considered employees of the schools for which they play and thus enjoy the rights and protections afforded to employees under the National Labor Relations Act (NLRA).
On March 5, 2024, the Dartmouth College men’s basketball team voted to unionize, the first such time an NCAA team has done so. The vote to join the Service Employees International Union (SEIU) Local 560 was a slam dunk at 13-2, with the full roster of men’s basketball players participating in the vote. This organizing effort came after a February 5th ruling by National Labor Relations Board (NLRB) Regional Director for Region 1, Laura Sacks, who determined that the players are employees under Section 2(3) of the NLRA and are thus able to unionize.
This is not the first time NCAA athletes have sought to be classified as employees in the hopes of unionizing. In 2014, an NLRB Regional Director also found that the players on Northwestern University’s football team who received athletic scholarships were statutory employees. When Northwestern petitioned for review from the full NLRB, however, the Board declined to assert its jurisdiction in the case and in doing so, bounced the question of whether the athletes were employees to a later time.
The NLRB’s decision was in large part because Northwestern, a private institution, is part of The Big Ten Conference, which, at the time of the ruling, comprised thirteen other schools, all of which are public colleges and universities. The NLRB generally only possesses jurisdiction over private sector employers and would therefore not have the authority to determine whether players at any of the other Big Ten schools were also employees, nor the authority to regulate them.
The concern was that this would lead to an asymmetrical situation where Northwestern players could unionize and collectively bargain, while the players for their primary opponents might not have a lane through which to do so. The NLRB determined that such a mismatched regulatory framework would be challenging and could potentially create imbalance and conflict between Northwestern and other teams in the Big Ten. The NLRB stated that it believed that “asserting jurisdiction in this case would not promote stability in labor relations.”
The situation with Dartmouth is different in several key ways. Dartmouth’s baseline argument against the Petitioner (SEIU Local 560) was that the men’s basketball players didn’t meet the common law test for employment because they did not receive compensation for their work, as Dartmouth does not offer athletic-based scholarships to its players. Additionally, Dartmouth asserted that it does not profit from the men’s basketball program like many larger schools do, but actually must subsidize the net losses of the program. Dartmouth also argued that the school does not “exercise sufficient control” over the players the way an employer would.
While it’s true that the Dartmouth players don’t rack up traditional wages or athletic scholarships, SEIU Local 560 claimed (and the Regional Director agreed) that the players scored other items and services of value that equated to compensation. In 2023, men’s players each received an estimated $2,950 worth of equipment, ranging from apparel to shoes to travel bags. Players also received $1,200 worth of tickets to give to family and friends. Dartmouth covered all travel, lodging, and meals when the team had away games and provided various other perks, such as access to sports medicine, academic support, and a streamlined admissions process for need-based aid.
Regarding Dartmouth’s claim that the men’s basketball program suffers net losses, the Regional Director wrote: “While there is some factual dispute as to how much revenue is generated by the men’s basketball program, and whether that program is profitable, the profitability of any given business does not affect the employee status of the individuals who perform work for that business. The basketball program clearly generates alumni engagement—and financial donations—as well as publicity which leads to student interest and applications.” The Regional Director also found that Dartmouth did exercise sufficient control over the players because it dictated and handled things such as players’ practice schedules, film sessions, team events, travel arrangements, and regulations on student-athlete conduct.
The Regional Director also addressed the Northwestern case and the NLRB’s point about squaring up different frameworks for private versus public schools. Dartmouth, while it is still part of the NCAA, competes mostly within the Ivy League conference, which only consists of other private universities. The Regional Director therefore concluded that the technical problem of maintaining uniformity in regulations would not be a major issue in the Dartmouth case. That being said, Dartmouth is appealing the decision by the Regional Director, hoping to get it overturned by the NLRB at large. If this were to happen, then the Dartmouth players’ vote to unionize would be walked back.
If the NLRB lets the decision stand, however, we could see college athletes from a variety of private schools beginning to organize. College athletes at the University of Southern California (USC), another private institution, are also banking their hopes on their own petition to be classified as employees, alleging that the NCAA, Pac-12 Conference, and USC are all joint employers. The outcomes from both of these cases could very well help determine whether college athletics pivot to a more professional model. And considering all of the other legal challenges that the NCAA is currently trying to guard against, this transition could be happening sooner rather than later.
If you have any further questions regarding unionization, the NLRB, or employee status, please contact Phil Mortensen.
