The Floodgates Are Open: The NLRB’s Classification of Dartmouth Basketball Players as Employees Could Lead to Student-Athlete Unionization Nationwide
Photo Source: Steve Johnson, basketball hoop, Flickr (May 30, 2010) (CC BY 2.0).
By: Kylee N. Harvey* Posted: 03/18/2024
Lay of the Land: An Introduction to Collegiate Athletes as Employees
On February 5, 2024, the National Labor Relations Board (“NLRB” or “the Board”) issued an opinion declaring Dartmouth College’s men’s basketball players employees of the university.[1] This decision stems from the program’s unionization filing in September and grants the team the right to vote on forming a union.[2] The Board’s development has the potential to bring substantial alterations to the NCAA’s amateurism status.[3] In reaching their decision, the NLRB relied on United States labor laws to conclude that Dartmouth players have the right to unionize and, as a result, a vote to do so from the players could occur in the near future.[4]
The ruling issued by the NLRB focuses on the relationship between Dartmouth College’s control over the men’s basketball team and the compensation the players receive in return for their work, and whether such a relationship meets the level of “employees” as set forth by the National Labor Relations Act (“NLRA”).[5] Though the decision will likely be appealed, this case marks the inaugural instance where the NLRB has been tasked with determining whether athletes, specifically those without athletic scholarships in non-profitable programs, should be classified as employees.[6] Moreover, this case illustrates the potential implications of the NLRB’s decision.[7] The expansiveness of the Regional Director’s definition of “compensation” suggests that most college athletes deserve some sort of compensation.[8] Additionally, given that most college athletic departments enforce rules from the NCAA, their school, and their teams, they are more likely to be seen as exercising significant “control” over their athletes.[9] Thus, the NLRB’s decision opens the door to the classification of all college athletes as employees of their colleges or universities.[10]
Into the Abyss: The NLRB’s Expansive Analysis of Dartmouth Athletes as Employees
This historical decision signifies a unique change in position by the NLRB.[11] Previously, the Board chose not to involve themselves in a comparable attempt to unionize by Northwestern University’s football team in 2015, thus refraining from recognizing student athletes as employees.[12] However, the NLRB utilized Dartmouth’s case as a chance to reconsider this matter and distinguish it from the Northwestern decision.[13]
In particular, the NLRB emphasized the extent of control held by Dartmouth over the amount of work performed by the men’s basketball team.[14] Members of the team testified to dedicating more than 40 hours per week to their sport.[15] In contrast, the National Collegiate Athletic Association (“NCAA”) allows only 20 hours per week.[16] Further, the Board acknowledged that Dartmouth College and the men’s basketball coaching staff exercise control over the team through their game and practice schedules, monitoring their summer workouts, coordinating team bonding activities as well as travel, eating, and sleeping arrangements, requiring them to sign various handbooks and documents, and even personal activities such as scheduling players’ haircuts.[17]
The Board’s decision to categorize the Dartmouth men’s basketball team as employees also rested on the compensation players receive in return for their work.[18] As a member of the Ivy League Conference, Dartmouth College athletes do not receive athletic scholarships.[19] Dartmouth athletics officials offered this fact as evidence to affirm that their athletes do not receive compensation.[20] However, the NLRB took into consideration various other benefits offered to Dartmouth’s athletes which it deemed reflective of an employer-employee relationship.[21] Specifically, the Board highlighted Dartmouth’s “early read” process, which streamlines applicants and recruited athletes through the admissions process, their financial, need-based aid packages, as well as other “fringe benefits” such as team apparel and equipment, tickets to games, academic, career, health, and counseling support services, and strength and conditioning training.[22] The Board even considered external factors such as the major media outlets paying to broadcast Ivy League basketball on television and the lifelong benefits of attending an Ivy League institution.[23] Ultimately, the expansive definition of compensation utilized by the Board insinuates that almost all college athletes could be considered employees of their institution with the appropriate combination of fringe benefits.[24]
Navigating the Current: The Implications of the NLRB’s Decision on College Athletics
Although historic, the NLRB’s classification of Dartmouth’s men’s basketball team as employees of their institution presents numerous questions concerning the future unionization of college athletics.[25] For Dartmouth athletes, unionization would essentially allow players to collectively bargain for salary, working conditions, and travel arrangements.[26] However, it is unclear how these collective bargaining contracts will differentiate between private and public institutions.[27] Similarly, in the wake of the expansive Name, Image, and Likeness (“NIL”) regime, the unionization of Dartmouth’s men’s basketball team would essentially “spell the end of NIL collectives” with the institution becoming the players’ “employers.”[28] Because NIL agreements rest largely on athletes’ status and performance on their respective teams, questions remain as to how collective bargaining will impact players’ rights to enter into such agreements.[29]
The numerous questions and implications of the NLRB’s decision to categorize the Dartmouth men’s basketball team as employees illustrate the beginning of what could eventually be a systemic change in the realm of college athletics.[30] Although still anticipating appeal, the Board’s decision does not bind any institution and will not bind any institution even if it is upheld.[31] However, without a definitive rulemaking from the NLRB, a court determination that athletes are employees, or Congressional action, college athletes and their institutions will remain in the dark and continue to question how to navigate their potential employer-employee relationship.[32] Thus, the NLRB’s Dartmouth College decision illustrates how the Board must narrow their approach to classifying student-athletes as employees of their institutions to more adequately guide athletics programs seeking to unionize.[33]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2025, Villanova University Charles Widger School of Law.
[1] See Cole Forsman, Labor Board Clears Way For Dartmouth Men’s Basketball to Form Union, FanNation (Feb. 5, 2024, 10:44 PM), https://www.si.com/college/gonzaga/basketball/labor-board-clears-way-for-dartmouth-mens-basketball-to-form-union (introducing NLRB’s decision as foundation for first union consisting of student-athletes and exposing potential “domino effect” of college athletes seeking to unionize nationwide).
[2] See Dennis Dodd, How a Ruling That Dartmouth Basketball Players Are School Employees, Can Join Union May Change College Sports, CBS Sports (Feb. 6, 2024, 1:36 AM), https://www.cbssports.com/college-basketball/news/how-a-ruling-that-dartmouth-basketball-players-are-school-employees-can-join-union-may-change-college-sports/ (explaining how “[o]nly a simple majority of eight is needed for the players to formally ask to join Local 560 of Service Employees Union.”). Unionization would entail Dartmouth compensating players on the men’s basketball team. See id. (stating Dartmouth men’s basketball players’ initial desire to unionize). Some players may receive minimum wage, while other players may compete and negotiate for a higher salary. See id. (insinuating connection between player performance, status within institution, and compensation).
[3] See Forsman, supra note 1 (noting dichotomy that exists between NCAA’s valuation of athletes as “amateurs” and Board’s decision in Dartmouth case).
[4] See Decision and Direction of Election at 18, Trustees of Dartmouth College, 01-RC-325633 (NLRB Feb. 5, 2024) (explaining Union’s representation of certain Dartmouth employees since 1966). Accordingly, the Union and Dartmouth have engaged in a sequence of collective-bargaining agreements over the years that encompassed different groups of employees and governed employee wages and working hours, among other things. See id. at 1 (offering example of current Union president, Christopher J. Peck, who serves as master painter for Dartmouth). These tentative agreements are formulated through negotiations involving unit members and are subsequently approved by the entire bargaining units. See id. (illustrating how President Peck and other union members have addressed employee grievances through Union membership).
[5] See id. at 18 (describing definition of “employee” under Section 2(3) of NLRA as broad). Specifically, the Board concluded that “Section 2(3) of the Act defines ‘employee’ broadly to include ‘any employee’ subject to only a few enumerated exceptions that do not include players at academic institutions.” See id. (mentioning how factual disputes concerning how much revenue Dartmouth men’s basketball program generates did not affect players’ employee status). The exclusions outlined in Section 2(3) are minimal and specific, and they do not explicitly include the classification of “students.” See id. (adding that profitability of athletic programs also does not affect players’ employee status). The lack of a relevant exclusion itself serves as compelling evidence of being covered by the statute. See id. (clarifying that exceptions enumerated in statute do not include players at academic institutions). As long as an individual satisfies the expansive definition of “employee” under Section 2(3), they are considered a statutory employee, irrespective of whether their employer is an educational institution or if they are simultaneously students during their employment. See id. at 18-19 (including existence of business office, fundraising department, and marketing department within Dartmouth’s Athletic Department as evidence of revenue and publicity generated by not only players, but also alumni).
[6] See Sarah Hartley, NLRB Regional Director Determines Dartmouth Basketball Players Are Employees, JDSupra (Feb. 7, 2024), https://www.jdsupra.com/legalnews/nlrb-regional-director-determines-8340178/ (distinguishing issue of whether student-athletes at private colleges and universities in major collegiate conferences, particularly in revenue-generating sports like football and basketball, should be classified as employees from issues surrounding non-scholarship athletes in programs lacking profitability).
[7] For further discussion of the potential implications of the NLRB’s decision, see infra notes 25-33 and accompanying text.
[8] For further discussion of the expansiveness of the Board’s definition of “compensation,” see infra notes 18-24 and accompanying text.
[9] See Hartley, supra note 6 (illustrating how all sports programs in colleges or universities are subject to regulations from different governing bodies, such as NCAA, NAIA, NJCAA, or others, along with rules from their respective conferences and institutions themselves). While the level of enforcement and demand may vary, it is crucial for institutions to recognize that as the regulations on athletes’ participation in sports increases, there exists a higher likelihood that the NLRB could determine a sufficient level of control, potentially triggering the NLRA. See id. (pointing out differences between regulation of Division I and Division III sports).
[10] See id. (emphasizing impact of Board’s decision on status of all athletes across all divisions and sports); see also Jimmy Golen & Ralph D. Russo, US Labor Official Says Dartmouth Basketball Players Are School Employees, Sets Stage For Union Vote, The Associated Press, (Feb. 6, 2024, 11:40 AM), https://apnews.com/article/dartmouth-basketball-union-ncaa-employees-19839a9afb5c8048a015cbcb86c0e25b (mentioning that “[t]here 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.”).
[11] See James A. Holt & Cori Smith, NLRB’s Recognition of Dartmouth College Men’s Basketball Team as Employees Could Change Collegiate Sports Forever, Emp’t L. Watch (Feb. 12, 2024), https://www.employmentlawwatch.com/2024/02/articles/employment-us/nlrbs-recognition-of-dartmouth-college-mens-basketball-team-as-employees-could-change-collegiate-sports-forever/#:~:text=Key%20to%20the%20Dartmouth%20College,Further%2C%20the%20Dartmouth%20College%20decision (introducing NLRB’s previous reluctance to exercise jurisdiction over another private institution whose athletes sought to unionize).
[12] See id. (comparing Board’s decision in Northwestern case). Northwestern differed from every other school in the Big-Ten Conference, being that it is not a state-run institution and therefore subject to the NLRB’s jurisdiction. See id. (indicating difficulty that arose from Northwestern case, specifically in terms of determining how to fairly implement decision that only applied to one institution in Big Ten Conference). See also Golen, supra note 10 (describing appeal of Regional Director’s decision to National Board when Northwestern football team held union election). In the Northwestern case, “the ballots were impounded pending a ruling … 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.” See id. (emphasizing key differences between Northwestern decision and Dartmouth decision).
[13] See Golen, supra note 10 (insinuating increased likelihood that Board will uphold Dartmouth ruling because of Ivy League school’s status as private institutions who do not grant athletic scholarships, whereas Board in Northwestern case did not address question of whether institution’s football players were employees).
[14] See Holt, supra note 11 (“Key to the Dartmouth College decision, the Regional Director concluded that the ‘basketball players are employees’ given that ‘Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform work in exchange for compensation.’”).
[15] See Dodd, supra note 2 (noting correlation between time-commitment and classification of student-athletes as employees).
[16] See id. (adding that “[a] Pac-12 study in 2015 showed that athletes in that conference spent more than 50 hours per week on their sport.”).
[17] See Holt, supra note 11 (detailing examples of control and supervision Dartmouth College holds over athletes); see also Decision and Direction of Election at 19, Trustees of Dartmouth College, 01-RC-325633 (NLRB Feb. 5, 2024) (declaring that “the record reveals no evidence that other members of the student body (the vast majority of whom, like the basketball players at issue here, are presumably legal adults) are so strictly supervised when they leave the confines of Dartmouth’s campus.”).
[18] See Hartley, supra note 6 (noting Dartmouth decision makes clear that NLRB is of opinion that being granted athletic scholarship does not serve as sole criterion for defining “compensation” when assessing whether athletes qualify as employees).
[19] See id. (disproving argument made by Dartmouth officials that players are admitted to Dartmouth based on strength of their academic records, when in actuality players are contacted and recruited by Dartmouth coaching staff during high school based on their basketball abilities).
[20] See id. (distinguishing Regional Director’s expansive approach, stating that fundamental economic connection between employer and employee extends beyond conventional wages and does not mandate payments to be substantial or of significant value).
[21] See id. (explaining most college athletes receive some sort of “fringe benefits” in return for their participation in college athletics).
[22] See id. (describing “early read” for admissions as providing opportunity for recruited athletes to see estimate of their financial aid packages); see also Decision and Direction of Election at 17, Trustees of Dartmouth College, 01-RC-325633 (NLRB Feb. 5, 2024) (“Because members of the Ivy League may not offer athletic scholarships, Dartmouth instead offers a streamlined admissions process in the form of an early read, which is of great value where Dartmouth accepts roughly 6% of its applicants.”). Dartmouth acknowledged the benefit of the early read process, considering the players attend the institution seeking an education. See id. 17-18 (describing how players may receive as much financial aid as required by their familial situation).
[23] See Holt, supra note 11 (including how “Dartmouth’s ‘Athletic Department has its own business office, fundraising department, marketing department and brand management department,’ suggesting that the business, marketing, and revenue-generating operations within a higher education institution was not lost in the NLRB’s decision.”).
[24] See Hartley, supra note 6 (maintaining that institutions engaging in strategic and financial planning should be mindful of Board’s expansive definition of compensation because majority of college athletes have requisite economic relationship with their respective institutions in accordance with NLRA’s definition of employee).
[25] See Holt, supra note 11 (offering examples of questions facing future of college athletics). For further discussion of the implications of the NLRB’s decision, see infra notes 26-33 and accompanying text.
[26] See Dodd, supra note 2 (“In essence, the decision changes the decades-old designation from ‘student-athlete’ to ‘student-employee’, at least at Dartmouth.”).
[27] For further discussion of the discrepancies over the applicability of the NLRA to private versus public institutions, see supra notes 11-13 and accompanying text.
[28] See Forsman, supra note 1 (explaining how unionization would eliminate “middleman” currently involved in NIL initiatives, but acknowledging that “[h]ow such a contract would be constructed is unknown — the transfer portal and the option to declare for the NBA Draft are unique regarding unionization since a player’s eligibility and membership with a school are affected by both routes.”).
[29] See Holt, supra note 11 (insinuating that Board’s decision in Dartmouth case could be seen as further progression towards treating college athletes as professionals, given growing significance of student athletes’ access to NIL agreements, ongoing changes and reorganization within college athletics conferences, and expanding reach and value of media rights agreements for broadcasting college sports and events).
[30] See Hartley, supra note 6 (highlighting that each evaluation of student-athletes as employees requires careful examination of unique details surrounding collective bargaining approval request for each unit, and specific characteristics and operational aspects of respective sports programs may lead to distinct outcomes).
[31] See id. (reminding institutions that Board’s decision “does not address if and how the NLRB may assert jurisdiction over state-run institutions, though the NLRB’s pending USC case asserts that the NCAA and Pac-12 conference are joint employers of USC athletes, which could trigger an extension of these rules to state schools around the country.”).
[32] See id. (dictating how, alternatively, Board’s decision foreshadows potentially similar outcomes for similar claims).
[33] See id. (illuminating how, if Board’s decision is upheld and statutory framework is consistently applied in future NLRB decisions, combination of compensation and control may meet criteria for categorizing almost all college athletes as employees of their respective colleges and universities).
