Whether you like it or not change is coming to college athletics. Earlier this week, the Dartmouth College men’s basketball team experienced a major victory when the National Labor Relations Board regional office in Boston ruled that the men’s basketball players are employees and are eligible to hold a union election. Last fall, the Dartmouth College men’s basketball team signed a petition seeking to join Local 560 of the Service Employees International Union. On Monday, the NLRB granted them the right to do so. In the ruling, the NLRB stated that “because Dartmouth has the right to control the work performed by the men’s varsity basketball team, and because 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.”
Control is a critical factor when determining whether an employer/employee relationship exist. The more control that a party has over another party, the more likely it is that an employer/employee relationship exists. In the ruling, the NLRB demonstrated the amount of control that the athletic program has over the players by referencing the fitness program that players must follow prior to the start of the academic year. The NLRB noted that the progress of the program is recorded in an app and monitored by the coaches. Additionally, the NLRB noted that each season the coaching staff sends out an email asking the players not pick classes during the potential practice window. Both instances prove that the Dartmouth College athletics department has a significant amount of control over the players on the men’s basketball team.
Furthermore, the NLRB found that the men’s basketball team receives compensation from Dartmouth College even though Ivy League athletes do not receive athletic scholarships. The NLRB considered the shoes and other apparel that the athletes receive to meet the definition of compensation. Based on the amount of control the Dartmouth College athletic department has over college athletes and the level of compensation they receive, the NLRB Boston regional office determined that the men’s basketball players should be deemed employees and have the right to unionize. However, it is important to note that this is not the first time that college athletes have petitioned to the NLRB for the right to unionize with initial success.
Northwestern Football’s Attempt to Unionize
In 2014, football players at Northwestern University petitioned to the National Labor Relations Board for the right to unionize. The Northwestern football players experienced initial success as the NLRB’s regional office in Chicago ruled that college athletes met the broad definition of an employee and as such could form a union. However, this ruling was short lived as Northwestern appealed the decision. The NLRB’s national office refused to assert jurisdiction over the case and dismissed the case. It is important to note that the national office did not address the pivotal question of college athletes’ right to unionize, but simply refused to assert jurisdiction. The NLRB reasoned that “the novelty of the petition and its potentially wide-ranging impact on college sports would not have promoted “stability in labor relations.”” This decision or lack thereof essentially left the door open for future related cases. The Dartmouth College men’s basketball team walked right through the door to being granted the right to hold a union election.
Like the Northwestern case, Dartmouth College stated that it will appeal the decision. However, the landscape at the NLRB’s national office is completely different than what it was when the Northwestern appeal was heard. In September 2021, the NLRB made it clear that it would support college athletes’ rights. The NLRB General Counsel, Jennifer Abruzzo, issued a memo suggesting that college athletes are employees under the National Labor Relations Act and should be afforded all protections under the Act. She also alleged that college athletes have been misclassified as “student-athletes”. Accordingly, it is not guaranteed that Dartmouth College’s appeal will be successful.
However, it does seem that this decision in the Dartmouth College men’s basketball team’s case will have a profound effect on the USC unfair labor practice case that is currently being heard in the NLRB’s regional office in California. In that case, college athletes from USC are seeking to prove that USC, the NCAA, and the Pac-12 Conference have engaged in unfair labor practices. That case too is centering on the amount of control the athletic department has over the athletes. It will be interesting to see if and how t Dartmouth case ruling will affect the USC case.
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