On Monday, February 5, a Regional Director of the National Labor Relations Board (NLRB) issued a ruling that Dartmouth College basketball players are employees of the school, allowing them to vote on unionizing. The NLRB’s Boston Regional Director, Laura Sacks, issued her opinion after all 15 members of the Dartmouth men’s basketball team signed a petition on September 13, 2023 to be represented by the Service Employees International Union, Local 560, a union which already represents some of the school’s employees.

Regional Director Sacks concluded that the school has the “right to control” the work of the basketball team members, and that the players perform such work in exchange for compensation.  Therefore, the student-athletes are employees under the National Labor Relations Act (NLRA) and able to unionize.

Dartmouth argued that its basketball players do not meet the common law test for employment because the school does not compensate them for any “work.” In fact, unlike most Division I basketball players, Dartmouth does not provide athletic scholarships to any of its student-athletes. Instead, Dartmouth provides need-based tuition assistance to its student-athletes, which the student-athlete does not forfeit even if they quit the team. The lack of athletic scholarships –according to Dartmouth – demonstrates that the school does not compensate student-athletes for their participation on any athletics team.

Sacks did not find the school’s argument compelling and instead found that Dartmouth controls and compensates its basketball players. Specifically, the Regional Director pointed out that Dartmouth basketball coaches largely dictate their players’ schedules and (especially on road trips) control when and where the players practice, eat, sleep, and have free time. The school also requires that the student-athletes participate in alumni socials and wear Dartmouth-labeled apparel at certain events. The players’ participation in such events, Sacks concluded, helps the school generate alumni engagement, publicity, and student interest and applications.

Although Dartmouth does not provide athletic scholarships, Sacks found that the school nonetheless compensates its basketball players by providing nearly $3,000 worth of equipment and apparel each year, as well as tickets, meals, counseling, nutrition, and medical care at no cost to the student-athlete. Sacks also pointed out that eleven of the fifteen members of the current basketball team receive at least some form of tuition assistance.

Relying on the NLRB’s decision in Columbia University, 364 NLRB 1080 (2016) (which found that graduate assistants can be considered employees of the university), Sacks concluded that the basketball team members – like research assistants – are employees for purposes of the NLRA. This decision is contrary to a 2015 decision – Northwestern University, 362 NLRB 1350 (2015) – in which the NLRB concluded that Northwestern football players were not employees under the NLRA. The NLRB’s Northwestern opinion was based, at least in part, on Northwestern’s participation in an athletic conference consisting largely of public universities (which are governed by their state’s labor laws, instead of the NLRA). On the other hand, the Ivy League consists entirely of private schools, a fact that Sacks relied on when distinguishing Dartmouth’s student-athletes from those at Northwestern.

The Regional Director’s decision likely will be appealed to the NLRB, and, given its current makeup, there is a strong likelihood of affirmance from the Board. Such action by the NLRB could change the landscape of Division I athletics at private universities throughout the country.

Ballard Spahr’s Labor and Employment Group represents colleges and universities in matters across the spectrum of labor and employment matters, including NLRB and unionization issues.  Should you have any questions regarding this post please feel free to contact any member of the Group.