On February 5, 2023, Regional Director for National Labor Relations Board (NLRB) Region 1 issued their Decision and Direction of Election, finding that the student-athletes were considered “employees” under the National Labor Relations Act (NLRA). The basketball players will now vote in an election to determine whether they want to be represented by the Service Employees International Union (“SEIU”), Local 560.
On September 13, 2023, SEIU filed a Petition for Election to represent the 15 players of the Dartmouth men’s basketball team. Dartmouth argued that the players do not perform work in exchange for compensation, meaning that the players are not “employees” under the NLRA and cannot be represented by a union.
Regional Director Laura Sacks disagreed, referencing the Board’s decisions in Columbia University, 364 NLRB 1080 (2016), and Northwestern University, 362 NLRB 1350 (2015), which looked at whether graduate student research and teaching assistants (Columbia) and football players (Northwestern) were employees of the universities they attended. Regional Director Sacks ultimately determined that “[b]ecause 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,” the players in the petitioned-for unit “are employees within the meaning of the Act.”
The decision analyzed the fact that the student-athletes represent the college while wearing the branded clothing and uniforms; the athletic department has its own business office and operations related to the revenue and publicity from college athletics; the college exercises significant control over the players’ work; and that the players perform work in exchange for compensation, even if they are not in the form of athletic scholarships. Notably, while “[t]he players’ compensation is of a non-traditional form” due to NCAA regulations, “[n]onetheless, the players are compensated in exchange for performing specific tasks, including practicing and attending games.” Dartmouth has 10 days from the date the decision to appeal to the National Labor Relations Board and is likely to appeal.
Takeaways
This decision further showcases the spotlight on college-athletes. This decision aligns with General Counsel Jennifer Abruzzo’s September 29, 2021, memorandum stating her position that college athletes are properly classified as employees under the NLRA. This also comes on the heels of the Supreme Court decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), which struck down certain NCAA rules restricting education-related benefits for student-athletes. Private higher education employers should reach out to legal counsel as we expect to see more cases of student-athletes and student workers seeking union representation.