What’s New?
Dartmouth College’s men’s basketball players are employees of the university, a regional office of the National Labor Relations Board ruled on Monday. That means they have the right to form a union, if they vote to do so.
“Dartmouth exercises significant control over the basketball players’ work,” Laura A. Sacks, a regional director of the NLRB, wrote to explain her decision. The players are required to follow a handbook that acts much like an employee handbook, she said. Though they do not receive salaries, they get other forms of compensation, such as basketball shoes and special consideration in Dartmouth’s admissions process.
“Dartmouth 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,” wrote Sacks, whose office is in Boston. “When the basketball team participates in away games, Dartmouth determines when and where the players will travel, eat, and sleep. Special permission is required for a player to even get a haircut during a trip.”
Those restrictions and more factored into her decision to call the players employees, she said.
What Happens Next?
The Dartmouth athletes will vote on whether or not to unionize. Meanwhile, Dartmouth says it will appeal the decision to the federally appointed labor board in Washington, D.C.
But that decision could be several years away, said Michael H. LeRoy, a law professor at the University of Illinois at Urbana-Champaign. By then, a new presidential administration could be in office. Most current members of the board were appointed by the Biden administration, but as their terms expire, they could be replaced by a Republican president.
Even so, LeRoy said, there’s a good chance that when the board decides this case, its five members will still have a majority of Democratic appointees.
The Background
This week’s decision comes in the midst of a sea change in public opinion about whether college athletes should be paid. Within the past few years, well over a century of insistence by colleges and the NCAA that players are students first and amateur athletes second has begun to erode.
Several lawsuits helped usher in those changes. A 2015 case allowed players to be given the full cost of tuition, while a 2020 case allowed for more education-related payments. In 2021 the NCAA changed its rules prohibiting players from making money off their name, image, and likeness. Since then, athletes have been able to sign marketing deals, sell their jerseys, accept sponsorships, and receive other forms of compensation. But NCAA rules still stipulate that they cannot be paid by their colleges.
The Dartmouth case is not the first time a regional director of the NLRB has ruled in favor of college athletes seeking to unionize. Northwestern University’s scholarship football players got the coveted employee designation in 2014. The national board, however, declined to assert jurisdiction over the case, in part because Northwestern is the only private college in its conference, the Big Ten. (NLRB decisions do not apply to federal and state employers.)
A scenario in which the board’s decision applied to only one team in a conference, and only that team was unionized, “would not promote stability in labor relations,” the NLRB has said. The ballots the football players had cast during an election on whether to unionize were impounded and never counted.
Why Does This Decision Matter?
While there are caveats — the length of time before a final ruling and the fact that Dartmouth is private — this case could bring changes to college sports beyond Dartmouth and the Ivy League.
For one, every college in the Ivy League is private, so the Dartmouth basketball team’s case does not face the challenges the Northwestern football players ran up against.
Additionally, LeRoy said, if the Dartmouth players unionize, their union could decide to bargain for benefits that are allowed by the NCAA. Instead of seeking paychecks, they could, for example, ask for players to be compensated with full athletic scholarships — something the Ivy League currently does not permit. That scenario may, in a sense, allow players to further crack open the door to getting a piece of the revenue they help certain colleges earn, without blowing the door off its hinges.
“It’s the unusual situation that could thread the needle,” LeRoy said. “Having unionization without impairing the NCAA model.”
It’s a scenario that brings up some complicated questions for the NLRB, such as, how will it define a bargaining unit? Is it just the Dartmouth basketball team? Or all men’s basketball players in the Ivy League? Would such a finding then set a precedent for other leagues that include private colleges? Or public ones?
Those questions could take years to answer.
