Game Changer: NLRB Rules College Basketball Players Are Employees and Can Unionize

2 min

For years now, the tide of college athletics has been shifting toward student-athlete representation and empowerment. Now, in what might become a landmark decision, a regional director for the National Labor Relations Board (NLRB) has ruled that members of the Dartmouth men's basketball team are employees of the school, allowing them to move forward with a vote that could make them the first unionized NCAA athletes in the country. The effects of such a vote could have far-reaching effects on college athletics, permitting athletes to negotiate over issues that were previously reserved for the schools, including salaries and work conditions, such as practice.

Laura A. Sacks, the regional director for the region that includes Dartmouth University, wrote in her decision that the athletes are employees because Dartmouth University "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." The regional director found that the university exerted control through its requirement that players follow strict practice and fitness programs. And while the Ivy League, of which Dartmouth University is a member, prohibits its universities from awarding athletic scholarships, the regional director found that players were compensated with free athletic equipment and other benefits that are not provided to the campus population at large.

This is not the first time that the NLRB has considered these issues. In 2014, Northwestern football players attempted to unionize and were permitted to conduct an election. Ultimately, though, the full five-member NLRB dismissed the case, and the ballots were never counted. The Board specifically held that, because Northwestern was in the Big Ten conference, which also housed public institutions, there was a risk that adjudicating the case could lead to labor instability, as those public institutions would not be subject to the National Labor Relations Act. Because Dartmouth University plays in the Ivy League, which consists solely of private universities, the students won't run into that same jurisdictional issue that arose for Northwestern.

Like the Northwestern decision, this decision will be appealable to the full Board. We will continue to track this case through appeal and will provide further updates as appropriate. Private school employers, even those without athletics programs, should monitor this development, as it could have future impacts on other groups on campuses, such as music students.

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If your organization has any questions about this article, or any other labor-related issues, please contact the authors of this article or any member of Venable's Labor and Employment Group.

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