According to a recent decision by the NLRB, the term “Student Athlete” can be seen as synonymous with the term “Employee.”
A regional director for the National Labor Relations Board (“NLRB”) on Monday, February 5, 2024, held that Dartmouth College men’s basketball players can hold a union election, making the athletes employees of Dartmouth. The team had previously signed a petition in September of 2023 asking to join Local 560 of the Service Employees International Union.
Regional Director Laura Sacks’ Dartmouth ruling will allow the players to negotiate salary and working conditions such as practice hours and travel. “Because 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, I find that the petitioned-for basketball players are employees within the meaning of the [NLRB] Act”, Sacks stated in her 26-page ruling. Sacks was unphased by the school’s argument that Dartmouth basketball does not generate profit and, therefore, cannot be seen as an employer with employees. “While there is some factual dispute as to how much revenue is generated by the men’s basketball program, and whether the program is profitable, the profitability of any given business does not affect the employee status of the individuals who perform work for that business.”
In the 2022-23 year alone, NCAA revenues rose from $1.14 billion in the previous fiscal year to $1.28 billion, most of which came from marketing deals during NCAA championship matches and tournaments. The NCAA has long been pressured to reevaluate how athletes are categorized. Despite the pressure, the NCAA continues to hold steadfast to its amateurism model, preventing athletes from getting paid, relegating athlete compensation to scholarships and expenses. The NLRB previously stopped Northwestern football players’ efforts to unionize in 2015, overruling a decision also made at the regional level. During the 2015 decision the NLRB pointed out that the Big Ten, of which Northwestern is a part, is comprised of both public and private schools, and as such since the NLRB does not have jurisdiction over public schools this could lead to an unfair labor situation. In the Dartmouth case, the Ivy League is comprised of eight private schools which could help the players, should Dartmouth choose to appeal.
Also worth noting, the 2015 decision came prior to the mounting pressure for the NCAA to recategorize athletes as employees and before the NCAA approved Name, Image, and Likeness (“NIL”) compensation for athletes. Our office’s legal briefing on the topic can be found at the following link:
Dartmouth has just a short window of time to appeal Sacks’ Decision, but Dartmouth players are free to hold a union election in the meantime.
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