Dartmouth Basketball Players Are Employees, NLRB Rules

A regional office of the National Labor Relations Board ruled Monday that Dartmouth College’s men’s basketball players are employees and have the right to unionize.

In a 26-page decision, Laura A. Sacks, regional director for the NLRB’s Northeast region, said she reached that conclusion 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.” Importantly, Sacks said, the conclusion that college players are employees “would not create instability in labor relations.”

The ruling directed the NLRB to hold a secret ballot election in the coming weeks in which the current members of Dartmouth’s basketball team will decide whether to join the Service Employees International Union, Local 560, which represents some other workers at Dartmouth. The ruling by the regional office will be reviewed by the agency's national office and by the full labor relations board.

Dartmouth issued a statement late Monday saying that it would appeal the decision. "We believe firmly that unionization is not appropriate in this instance and we will be seeking a review of the decision the regional director issued today."

The NLRB office’s ruling comes almost 10 years after another regional office of the labor board declared football players at Northwestern University to be employees. In 2015, the full labor relations board declined to rule on the matter, citing largely procedural issues and leaving questions about whether college athletes are employees for another day.

Much has changed during the last decade, though, with the National Collegiate Athletic Association losing several court decisions that have resulted, among other things, in athletes now being only compensated for use of their names, images and likenesses. Evidence of the changing perspective of amateurism in college athletics was also found in Associate Justice Brett Kavanaugh's concurring opinion in a 2021 Supreme Court decision about payments to athletes.

The traditions of college sports "cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated," Kavanaugh wrote. "Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law."

The case at Dartmouth may provide the next test of the question of whether college athletes are employees, unlikely as the Ivy League setting—where players do not receive athletic scholarships and tend to have more flexibility than many athletes elsewhere—may be.

All 15 members of the institution’s men’s basketball team signed a petition last fall seeking to unionize, and in testimony, union officials and Dartmouth’s players told the NLRB hearing officer that athletes were discouraged from taking certain classes that clashed with practice times and that Dartmouth exercises “significant control over the players by designing and monitoring their summer workouts, requiring them to sign handbooks and other documents, dictating the time they spend practicing, directing those practices, and scheduling their road trips such that each meal and sleep period occurs at the coaching staff’s discretion.”

Dartmouth, in turn, asserted that the players should not be considered employees because the athletes do not receive athletic scholarships, that the college does not derive a profit from its men’s basketball program and that the college allows them to miss practices in favor of academic pursuits.

Weighing those arguments, Sacks ruled in favor of the SEIU, citing the precedents involving Northwestern’s football players and graduate teaching assistants in a case at Columbia University.

Like those students, “the basketball players at issue here perform work which benefits Dartmouth,” the decision stated. Questions of profitability aside, it said, “the basketball program clearly generates alumni engagement—and financial donations—as well as publicity which leads to student interest and applications.”

While the players do not receive athletic scholarships, the NLRB ruling said, they receive “early read” decisions on whether they’ll be admitted to Dartmouth, and they receive “numerous fringe benefits, including academic support, career development, sports and counseling psychology, sports nutrition,” and the like. (The decision also talks about the sneakers they receive.)

Responding to Dartmouth’s argument that the definition of “employee” could make any student who “participates in any extracurricular activity and receives need based financial aid” an employee, the ruling stated, “The record does not suggest that other extracurricular activities dominate students’ schedules to the extent that students are encouraged to take classes at particular times and then miss those dutifully scheduled classes due to the activity’s travel requirements. The record also does not suggest that the hypothetical student journalists, actors and musicians described by the employer in its brief are recruited and admitted through a special process because of their investigator and artistic skills. Nor does the record indicate that these students’ journalistic and artistic endeavors require Dartmouth to employ multiple specialized individuals to monitor funds and brand management.”

Dartmouth sought in its response to the NLRB's ruling Monday to make the point that athletes are indeed just like other students.

"Dartmouth’s mission is to educate the most promising students and prepare them for a lifetime of responsible leadership, and this applies equally to our students who participate in varsity athletics," the college said. "Our students come to Dartmouth to learn, conduct research, and pursue their academic goals. Similarly, our athletes’ primary focus is learning, and our guiding principle is that students are scholars first and athletes second.

It continued: "It’s important to understand that unlike other institutions where athletics generates millions of dollars in net revenue, the costs of Dartmouth’s athletics program far exceed any revenue from the program—costs that Dartmouth bears as part of our participation in the Ivy League. We also do not compensate our athletes, nor do we provide athletic scholarships; all scholarships are based on financial need."