“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 [National Labor Relations] Act,” NLRB Regional Director Laura Sacks ruled.
The case is being closely watched, coming at a time when the NCAA’s bedrock amateur athlete model is facing multiple challenges in court.
“It’s the first step to potential employee status for college athletes,” said Gabe Feldman, a sports law professor at Tulane.
The NCAA and universities across the country have been steadfast in insisting that their athletes are students, not employees. College sports leaders have even lobbied Congress for a federal law that would codify that classification as the NCAA faces a federal lawsuit in Pennsylvania on the subject. Former Massachusetts governor and current NCAA president Charlie Baker has called for a tier of Division 1 sports where schools pay some athletes directly.
The school can still appeal the regional director’s decision to the national board; that’s what happened when members of the Northwestern football team held a union election in 2014. In case of appeal, the ballots would be impounded pending a ruling. An election can be held while an appeal is pending. All 15 members of the team have already indicated a desire to unionize.
The Northwestern ballots were destroyed after the NLRB, which only governs private employers, decided that allowing the football players at the only private school in the Big Ten would skew the labor market in the conference. It did not address the question of whether the players were employees. All eight Ivy League schools are private and do not grant athletic scholarships. Feldman said that could increase they likelihood the full board will uphold the ruling.
“But on the flip side, if Dartmouth men’s basketball players are employees, not only what athletes are not employees, but does this make the music students employees?” Feldman said. “So this may open the door too far?”
There is a complaint before a different NLRB body in California that claims football and basketball players at Southern California should be deemed employees of the school, the Pac-12 Conference in which they play and the NCAA. That hearing resumes later this month.
In a 2021 memo, the NLRB’s top lawyer said college athletes should be considered employees.
“The freedom to engage in far-reaching and lucrative business enterprises makes players at academic institutions much more similar to professional athletes who are employed by a team to play a sport,” NLRB General Counsel Jennifer Abruzzo wrote.
During a four-day hearing in October, Dartmouth argued that the players shouldn’t be considered employees because athletics are part of the academic mission of the school, like performing in the orchestra or even playing club sports.
“At Dartmouth, students’ primary objective is learning,” school attorney Joe McConnell said then. “Dartmouth has adopted policies reflecting that students who participate in intercollegiate athletics are students first and athletes second.”
The college also said the men’s basketball program loses money. Attorneys for the players countered that the school’s numbers leave out important and lucrative revenue streams that the basketball team contributes to. What’s more, the players say it’s not whether the team turned a profit: What matters is if the program brings in revenue, and also whether coaches have control over the players.
The collegiate sports model based on amateurism is facing numerous legal and political threats, along with the NLRB ruling. The NCAA is facing at least six antitrust lawsuits, including one brought last week by attorneys general from Tennessee and Virginia that challenges how recruits can be compensated for name, image and likeness.
The model has been crumbling, most significantly after a 2021 Supreme Court ruling that opened college sports up to additional — though still limited — kinds of pay. In response, the NCAA loosened rules to permitted players to profit from their celebrity.
“I think they’re all different sides to a similar threat,” Feldman said. “And the threat is the loss of control over the ability to restrict compensation to athletes. And we are closer than we’ve ever been to a system where college athletes not only receive significant additional compensation, but also have a vote in how much compensation they receive.”
