STUDENT-ATHLETES CAN BE EMPLOYEES?

Groundbreaking Decision Rules Dartmouth Basketball Players Are Employees

In a brand new decision, the regional director of the National Labor Relations Board (NLRB), Laura Sacks, ruled that Dartmouth College men's basketball players are considered employees of the school and can unionize.

In September, all 15 members of the men's basketball team filed a petition with the NLRB for the right to unionize. They filed through the Local 560 chapter of the Service Employees International Union.

As employees of the school, the players would have rights to benefits, the ability to negotiate pay, and appropriate working conditions.

In her statement, regional director Laura Sacks wrote,

“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.”

This ruling will be appealed by the college, as the spokesperson for Dartmouth, Diana Lawrence said in an email statement according to The Dartmouth.

“…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. For those reasons, among others, we believe firmly that unionization is not appropriate in this instance.”

According to the most recent EADA (Equity in Athletics Data Analysis) data, Dartmouth College generated $19.1 million from athletics. Every dollar they made was invested back into the sports themselves. As an Ivy League school, Dartmouth is a private institution and does not offer athletic scholarships.

Dartmouth's private school status adds to the ruling's chance of being upheld.

In 2014, Northwestern football filed a similar petition to Dartmouth but was overturned at the national level because the NLRB only operates in the private sector. Today, this fact will work in the basketball team's favor.

What does this mean for the future of the NCAA?

There is a lot that is unknown in this case. This is all uncharted territory. Gregg Clifton, a partner at Lewis Brisbois explained to us,

“What does this mean? No one knows the true effect yet. That's the challenge. This is an interpretation by the Regional Director from one region of the NLRB, Region 1. In the Northwestern case we had a similar determination by a Regional Director that was eventually ignored by the Board. While times may have changed since that determination by the Board, the only thing we do know currently is that we now have another region in this country that has preliminarily reached a similar conclusion. In this case, that the men's basketball players, in her opinion, are employees of Dartmouth College.”

There have been many updates in the world of NIL recently. In December, NCAA President Charlie Baker announced a proposal for a subdivision where schools could pay athletes directly.

Now, college athletes might be considered school employees along with this.

This all might sound great for the athletes, but larger problems could arise. At the end of January, Loyola Marymount University announced that they would be cutting six varsity teams to spend their resources on a smaller pool of athletes.

Smaller Division I schools are already acting to try to keep up with the changing NIL landscape. Without the funds that Power 5 programs have, these schools will be left in the dust.

After this ruling, it is certainly possible that we see more petitions come in from teams asking for their schools to consider them employees. Again, with schools that have smaller budgets, this could present a huge problem for some institutions.

There is another NLRB case to look out for, arguing that athletes at the University of Southern California (USC) should be considered employees of their conference, the Pac-12 (a private entity), and the NCAA. If they rule in favor of the athletes, other public school athletes could take on the same case. However, we likely won't see a decision for some time.

Only time will tell where this case will lead the private and public colleges and universities, NIL, and the NCAA as a whole. This is unfamiliar terrain for everybody…and the integrity of college sports as a whole could be at risk.