Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On February 5, 2024, the NLRB’s Regional Director for Region 1, Laura Sacks, issued a written decision finding that Dartmouth’s men’s basketball players are employees under the National Labor Relations Act. Based on their status as employees, Regional Director Sacks found, Dartmouth’s men’s basketball players are eligible to vote in a union election petitioned for by Local 560 of the Service Employees International Union, a labor union that already represents several other more traditional employee groups at Dartmouth.
The decision is subject to review by the National Labor Relations Board.
The Regional Director rooted her decision in the Board’s common-law definition of employment, which requires a finding that an employer has the right to control the employee’s work and that the work is performed in exchange for compensation. The Regional Director made precisely those findings of fact in her decision Monday.
Dartmouth does not treat its men’s basketball players, or other student-athletes, as employees in any traditional sense. The student-athletes do not fill out I-9s or receive W-2s and they are not paid any wages or salary for their participation with the Dartmouth basketball program. Indeed, in keeping with Ivy League policy and tradition, Dartmouth’s basketball players do not receive scholarships or institutional financial assistance toward the costs of their academic program by virtue of being recruited for and playing on the basketball team. Nor are Dartmouth’s men’s basketball players subjected to the employment policies applied to Dartmouth’s employees.
Despite these undisputed facts, the Regional Director found that Dartmouth’s requiring the basketball players to follow strict fitness, practice, and playing regimens constituted the requisite control, and that the thousands of dollars’ worth of athletic equipment and apparel, tickets, and other athletic and academic supports not provided to non-student-athletes constituted sufficient compensation in exchange for their participation on Dartmouth’s basketball team to make them employees.
This is not the first time a Regional Director has found collegiate student-athletes to be employees for the purposes of the National Labor Relations Act.
In 2015, the Regional Director of Region 13 found that scholarship-supported football players at Northwestern University were employees under the NLRA but that non-scholarship players were not employees. Upon review, the National Labor Relations Board neither accepted nor rejected the Regional Director’s employee status decision but instead declined to exercise jurisdiction over the case. The Board found that Northwestern’s status as the only private institution at that time in the otherwise all-public Big Ten conference could lead to labor instability since the Big Ten’s public institutions would be subject to various state labor laws but not the federal National Labor Relations Act. In her recent decision, Regional Director Sacks noted that concern was not present for Dartmouth, given its participation in the all-private Ivy League athletic conference, and also noted there was no other restriction in the Board’s 2015 Northwestern decision that precluded finding an appropriate bargaining unit of student-athlete “employees” on a team-by-team basis even at a single institution.
While the Dartmouth decision comes as a surprise to some observers, it is in keeping with the pro-organizing policy agenda pursued by current NLRB General Counsel Jennifer Abruzzo, including her September 29, 2021 General Counsel Memorandum (GC 21-08) where she asserted her view that student-athletes should be treated as employees for all purposes under the NLRA. Indeed, last May, the Regional Director for Region 31 filed an unfair labor practice complaint against the University of Southern California, the Pac-12 Conference, and the National Collegiate Athletic Association, alleging that their failure to use the term “employee” to refer to student-athletes in the university’s student athlete handbook and related social media policies intentionally discourages student-athletes from exercising their alleged Section 7 rights as employees under the National Labor Relations Act. Unlike Dartmouth, at USC there is no pending union election petition and no finding as of yet that the involved student-athletes are employees under the NLRA.
Labor organizing issues in higher education continue to evolve quickly. Last year, for example, in a case involving a petition seeking a union election for graduate fellows at MIT, Regional Director Sacks reached a conclusion seemingly opposite the one she just rendered in the Dartmouth case. In the MIT case, Regional Director Sacks found that graduate fellows who received financial fellowship awards were not employees under the NLRA because MIT did not exert control over their work for the benefit of the institution. Rather, the Regional Director found, the financial benefits received by the fellows supported only their own academic progress and were not dependent on completing research at the direction of an institutional faculty.
This area of labor law is highly fact specific, and this is especially true in the higher education context. Whether the Dartmouth ruling will be subject to further review and/or appeal is not yet known, and the decision’s impact or application to private institutions in athletic conferences with public institutions is far from clear.