by JPeters | February 29, 2024 5:44 pm
Board official decides student-athletes are considered employees with the right to unionize
Region 1’s regional director of the National Labor Relations Board [1](NLRB) recently made a decision that sent a shockwave through the National Collegiate Athletic Association (NCAA[2]) community. The director’s recognition of the Dartmouth College[3] varsity men’s basketball team as employees — with the right to unionize under the National Labor Relations Act (NLRA) — would represent, if the decision were to be upheld by the NLRB, more than just a shift in the NLRB’s thinking on the college-athlete vs. employee conundrum. The decision could also create a seismic change in how college athletes and other student workers interact with their educational institutions (i.e., “employers”) in the future.
Of one thing we can be certain. This decision — and the decisions that happen next — promise to further erode the amateurism model [4]upon which the NCAA is based.
The Case
In September 2023, the 15 Dartmouth College varsity men’s basketball team members filed a petition to join the local chapter of the Service Employees International Union [5](SEIU), which already represents other Dartmouth employees. Dartmouth opposed the petition, maintaining that the players did not have the right to collectively bargain because, among other factors, “as members of the Ivy League, they received no athletic scholarships and because the program lost money each year.”
On February 5, 2024, the NLRB’s Region 1 Regional Director, Laura Sacks, issued an administrative decision finding that Dartmouth College’s men’s basketball players are, indeed, employees of the school and directed an election in which the players can vote, if they wish, to join SEIU Local 560[6]. That vote is scheduled to take place on March 5, 2024.
Precedent
Sacks found that Dartmouth basketball players fit the definition of “employee” under Section 2(3) of the NLRA[7]. She cited a previous decision —Columbia University, 364 NLRB 1080 (2016) [8]— where the NLRB found that student research assistants were “employees” under the NLRA because “Columbia University directed their work and performance.”
In another previous action cited by Sacks in the Dartmouth case — Northwestern University, 362 NLRB 1350 (2015) [9]— the NLRB had declined jurisdiction in a case involving the attempt by Northwestern University’s football team to unionize. Why? The primary reason cited in support of the NLRB deciding not to assert jurisdiction over scholarship student-athletes was that “even if they were statutory employees, asserting jurisdiction would not create stability in labor relations.”
The NLRB reasoned in that case that because Northwestern University is the only private institution in the Big Ten, and because the NLRA only applies to private entities, a NLRB decision would impact only one school. It was seen as “unfair.”
In the Dartmouth decision, the regional director found that even though Dartmouth basketball players didn’t receive scholarships, they received other forms of compensation. Her examples included: “athletic equipment and apparel, tickets to games, lodging, meals, and fringe benefits like academic support, career development, sports and counseling psychology, sports nutrition, leadership and mental performance training, strength and conditioning training, sports medicine, and integrated health and wellness.”
Dartmouth is expected to appeal the decision to the full NLRB. Beyond that, it is possible the case will go to the federal appellate court and possibly the United States Supreme Court.
Unionizing Academia
Private colleges and universities nationwide are seeing a significant increase in union organizing activity — ranging from adjunct professors to graduate students to medical residents. In recent years, academia has proven to be particularly fertile ground for grassroots organizing work.
Interestingly, the inspiration behind the efforts of the Dartmouth men’s basketball team to unionize was the recent unionization of student dining hall workers at the school. One of the student dining hall workers organizing other workers was also a basketball team member. Similar activity is happening on dozens of campuses across the country today. It’s a “movement” that’s gaining momentum.
College administrators — and the NCAA[10] — are lobbying Congress to enact legislation preventing student-athletes’ classification as employees and shielding college sports programs from federal antitrust laws. But for various reasons Congressional action on this issue isn’t likely anytime soon.
In the meantime, there is growing uncertainty about the future of the “amateurism model” upon which the NCAA is based. And, perhaps more significantly, it raises the question of how this ruling may change the funding model for post-secondary athletic programs.
Acknowledging Current Realities
Given the current composition of the NLRB, it’s doubtful the trend of union-friendly decisions will end anytime soon. Employers can protect themselves to some extent by focusing on compliance with the NLRA and other federal legislation — and by cultivating healthy and mutually satisfactory relationships with their workforces.
Given our current, dynamic labor environment, solid labor and employment law advice is more important than ever.
If you have any questions about union organizing activity in your business or industry — or other concerns about your company’s HR policies and compliance with federal labor regulations — don’t hesitate to contact Orr & Reno for assistance.
Steven L. Winer [11]and Lynnette V. Legra[12]
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