Student-Athletes Score Big for Union Rights as NLRB Regional Director Recognizes Dartmouth’s Basketball Team as ‘Employees’

Details
Higher education has seen a marked increase in labor and union activities on public and private campuses, even reaching historic levels in the past couple of years with campus strikes and organizing by student workers. Another emerging issue for private colleges has been whether student-athletes can be considered “employees” entitled to certain legal protections under the National Labor Relations Act (NLRA).

On Monday, February 5, the National Labor Relations Board’s (NLRB) Region 01 Director Laura Sacks answered this question affirmatively under the NLRA, permitting the players on Dartmouth College’s basketball team to organize and paving the way for the first labor union for National Collegiate Athletic Association (NCAA) athletes.

Background
Players on Dartmouth’s basketball team petitioned the NLRB to organize with the Services Employees International Union (SEIU), a prominent labor union. Dartmouth opposed the petition for union representation, arguing that the players were not employees and, therefore, they were not subject to the protections of the NLRA. Specifically, Dartmouth argued that the players do not meet the NLRA standard because they do not receive compensation, either through wages or athletic scholarships, and therefore they do not perform work in exchange for compensation. Dartmouth further argued that the basketball players are not employees because the school does not exercise control over them and because the basketball program does not generate revenue for the school.

Decision
The regional director disagreed with Dartmouth. First, the regional director concluded that Dartmouth does exercise sufficient control over the basketball team. The players are required to provide basketball services to Dartmouth only, to the exclusion of other schools. Moreover, the school determines when students will practice, play, engage with alumni, and take part in other team-related activities. That level of control over the players’ schedules only intensifies when students travel for away games, interfering with the players’ academic schedules. Dartmouth’s basketball players are also bound by both Ivy League and NCAA regulations.

Second, the regional director determined that Dartmouth’s basketball players also perform services for compensation. While Dartmouth’s basketball players do not receive athletic scholarships—which has been cited as an indicator of employee status in the student-athlete context—the regional director reiterated that individuals can be employees even when benefits other than traditional wages are given, and regardless of the value of those benefits. In this case, the regional director found that Dartmouth’s basketball players receive undeniable benefits, such as “early read” for admission prior to graduating high school, equipment, game tickets, and expensive apparel. Therefore, even though these benefits may have been less valuable than a full scholarship, the players still received compensation for their services. Furthermore, regardless of the profitability of the basketball program, Dartmouth’s basketball players perform services that benefit the college in the form of alumni engagement, financial donations, and student applications.

Importantly, the regional director rejected Dartmouth’s argument that any student participating in extracurricular activities could conceivably meet the NLRA’s definition of an employee. Specifically, the regional director found that no other extracurricular activities cited by Dartmouth dominated student schedules for travel requirements or required a special process for recruitment and admission. Accordingly, the regional director determined that certain basketball players on Dartmouth’s men’s varsity team were employees, and therefore the team was an appropriate unit for bargaining under the NLRA.

The regional director’s decision in the Dartmouth case continues an unprecedented trend for higher education labor relations. Private colleges, which are governed by the NLRA rather than state laws, are especially likely to see an increase in union activities on campus and, perhaps now, among collegiate athletes emboldened by this latest decision.

We will be watching to see how this issue plays on after its appeal to the full NLRB. In the meantime, our Higher Education and Labor Relations Teams are ready to assist with your questions and issues regarding this evolving area of the law.