Summary: On February 5, 2024, the National Labor Relations Board’s (NLRB or Board) Regional Director for Region 1 (Boston) announced that Dartmouth College men’s basketball players are employees under the National Labor Relations Act (NLRA) and may vote to unionize. The Regional Director premised her finding on the basis that Dartmouth exercises significant control over the work performed by the basketball players, who in turn perform that work in exchange for compensation.
Background
In September 2023, the Service Employees International Union Local 560 (SEIU) filed a petition for a representation election with Region 1 for a bargaining unit consisting of 15 Dartmouth College men’s basketball players. The SEIU petition is the first to include college student-athletes since 2015, when a union sought the same collective bargaining rights for Northwestern University football players. In Northwestern University, 362 NLRB 1350 (2015), the Regional Director for Region 13 of the NLRB determined that the football team’s scholarship players were employees under the Act. However, the NLRB declined to assert jurisdiction over the matter, reasoning that a union at Northwestern, a private school, could destabilize college football because most other athletes play for state public schools, outside of the NLRA’s jurisdiction. As Northwestern was the only private school that competed in the Big Ten Conference, the Board concluded that it would not effectuate the policies of the NLRA to exercise jurisdiction over the Northwestern football players. Notwithstanding, the Board did not decide whether the football players were employees.
The Trustees of Dartmouth College Decision
In relying on the Regional Director’s decision in Northwestern University and a subsequent Board decision in Columbia University, 364 NLRB 1080 (2016) (conferring employee status on both graduate and undergraduate assistants and researchers at universities), the Regional Director for Region 1 concluded that the players on Dartmouth’s men’s basketball team are employees under the NLRA, specifically because “Dartmouth has the right to control the work performed by the men’s varsity basketball team, and the players perform that work in exchange for compensation.”
The Regional Director first noted that the Act’s definition of an “employee” does not include any exclusion for college athletes. Similar to the student assistants in Columbia University and the football players in Northwestern University, the Regional Director recognized that the Dartmouth basketball players perform work that benefits the school. Even though Dartmouth indicated that it receives no profit from the men’s basketball program, the Regional Director found that Dartmouth still benefits from the team in matters such as alumni engagement, financial donations, and publicity that the basketball players generate, which serve as catalysts for student interest and applications for admission.
The Regional Director continued that the basketball players received compensation in exchange for their work for Dartmouth. Although the basketball players do not receive athletic scholarships, the Regional Director concluded that the “players’ compensation is of a non-traditional form,” which included equipment, apparel, game tickets, lodging, meals, admission benefits, academic support, career development, sports and counseling psychology, sports nutrition, leadership and mental performance training, strength and conditioning training, sports medicine, and integrative health and wellness.
Moreover, the Regional Director concluded that the Dartmouth men’s basketball players act at the school’s direction as the school exercised a substantial amount of control in the following areas:
- Players may only provide their basketball services to Dartmouth;
- The Student-Athlete Handbook functions very similar to an employee handbook, listing mandatory tasks and rules the athletes may not violate;
- Dartmouth’s discretionary control under both NCAA and Ivy League regulations to dictate athletically related activity;
- Dartmouth’s control over when players practice and play, review film, engage with alumni, or participate in team-related activities; and
- Dartmouth’s discretion for away games to determine when and where the team will travel, eat, and sleep, including the “special permission” that is required for players to act at their leisure.
Lastly, the Regional Director distinguished the Board’s failure to assert jurisdiction in Northwestern University. As Dartmouth’s conference is the Ivy League, which consists of only private universities (unlike the Big Ten Conference, which consists of only one private university), the Regional Director found that “the Board’s concerns [in Northwestern University] about potentially conflicting state labor laws do not apply.”
Although Dartmouth can appeal the Regional Director’s decision to the Board, a vote to unionize is scheduled for March 5, 2024.