Dartmouth Labor Case Gets Boost From Changed Legal Landscape

As the National Labor Relations Board considers whether the men’s basketball team at Dartmouth College should be classified as employees under federal labor law, legal observers say shifting attitudes among the public and the courts may tilt the scales in favor of athletes.

The last time a college sports team attempted to unionize was in 2014 when Northwestern University’s football team filed a representation petition with the NLRB. The board ultimately denied it, declining to assert jurisdiction over the team. The specific legal facts of the Dartmouth case, its membership in the Ivy League athletic conference, and the board’s Democratic majority could all contribute to a historic ruling that would grant the players the right to unionize and bargain.

“If we had a Republican administration right now, this would’ve never happened,” said Sam Erhlich, a business management professor at Boise State University and former sports agent consultant. “But I think we have this perfect storm now with Dartmouth for the board to classify them as workers.”

Differing Circumstances

In the Northwestern case, the agency’s regional director initially held that players on an athletic scholarship qualified as employees under the National Labor Relations Act. But the board overturned the decision and declined to assert its jurisdiction.

The full five-member, bipartisan panel said it wouldn’t “promote stability in labor relations” to order the unionization election among the football players because Northwestern was at the time the only private institution in the Big Ten conference and one of 17 private schools among 125 colleges in the NCAA’s Football Subdivision.

The board legally can’t assert jurisdiction over any public universities or colleges. Those schools are governed by state laws, some of which do not permit student-athlete employment. This would create an “inherent asymmetry of the labor relations” and “regulatory regimes” among the teams, said the ruling.

“In other contexts, the board’s assertion of jurisdiction helps promote uniformity and stability, but in this case, asserting jurisdiction would not have that effect because the board cannot regulate most FBS teams,” the board said in 2015.

Michael Duff, a law professor at Saint Louis University, said he thinks the Dartmouth case will be looked at differently. The small, New Hampshire college plays its sports in the Ivy League conference, whose eight members are all private schools. The men’s basketball team petitioned to unionize with a Service Employees International Union local in September 2023, capitalizing on a wave of organizing campaigns on campus. The union won the election in March this year by a 13-2 vote.

This could make the NLRB more comfortable with asserting jurisdiction over the team, he said. But one thing that could sink Dartmouth’s case is the extent of non-monetary compensation players currently receive.

NLRB Regional Director Laura Sacks said in the February ruling that the men’s basketball players earn benefits totaling nearly $3,000 per person per season in tickets to games and events, travel and lodging for athletic activities, and free clothing and athletic equipment.

Ivy League schools do not award athletic scholarships. While student athletes are slated to get paid for the first time through a revenue-sharing scheme laid out in an antitrust settlement between the NCAA and players, these payments likely won’t begin until 2025 or 2026.

Mit Winter, sports attorney for Kennyhertz Perry, said the NLRB’s case involving the University of Southern California might have a better chance of getting athletes employment status.

The agency’s general counsel is alleging in unfair labor practice proceedings that USC, the NCAA, and the Pac-12 Conference all act as joint employers of the school’s football and basketball players. The case, filed in 2022, is awaiting a ruling from an administrative law judge. USC joined the Big Ten this year.

“The men’s and women’s basketball players and football players, besides the walk-ons, are receiving full athletic scholarships, and no one is going to argue that’s not monetary compensation, ” Winter said, referring to the USC case. “But is the lack of scholarships in the Dartmouth case going to be a big enough factor to have the regional director’s decision overturned? We’ll have to see.”

After the basketball players voted to unionize in March, Dartmouth economic professor Patricia Anderson said the NLRB regional director’s decision could apply to extracurricular activities other than athletics.

“Students working on the school play, for example. The school determines their schedule in a pretty serious way and they might get things like makeup or costumes or free tickets for their friends or family. Those were the things counted as compensation for the athletes,” she said. “So it seems like it could seriously alter what it means to be a student who does more than just take classes.”

Board Pressure

Another factor that may assist the Dartmouth athletes is the number of other legal decisions within the past 10 years over the rights of college athletes.

The US Supreme Court’s unanimous ruling in NCAA v. Alston in 2021 opened the door to athlete compensation by striking the association’s rules restricting education-related benefits like computers, internships, and academic achievement awards.

In his concurring opinion, Justice Brett Kavanaugh blasted the NCAA’s amateur model, saying it would be “flatly illegal in almost any other industry in America.” Kavanaugh suggested the NCAA and its conferences consider collective bargaining to solve its antitrust woes.

Last month, the US Court of Appeals for the Third Circuit ruled that a group of athletes from Cornell University, Fordham University, and Villanova University could pursue Fair Labor Standards Act claims because they plausibly alleged the NCAA and their respective schools were their joint employers.

While it didn’t expressly grant the players employment rights, the panel rejected the NCAA’s arguments that they can’t be employees merely because they are “student-athletes.”

The NCAA also recently agreed to compensate Division I players with direct payments and benefits worth up to 22% of the schools’ average athletic revenue each year to settle a class-action antitrust suit.

The public has also warmed to college athletes receiving compensation of some form. According to a 2023 poll from Seton Hall University, 55% of respondents polled said they think players should be paid in addition to their athletic scholarships. Another study from Sportico and The Harris Poll last year found that 64% of respondents believe athletes should be employees and 59% think they should be able to unionize.

These incremental changes could sway the NLRB in the Dartmouth case, Duff said.

“The idea that these players are entitled to compensation is much more popular than it was in 2015,” he said. “So I think the board will be feeling that pressure to cover them under the NLRA that didn’t exist when the last case was being decided.”

Political Uncertainty

If the board doesn’t issue a ruling before November, there’s a chance it may not get decided at all depending on the results of the upcoming election.

If Donald Trump wins the presidency, he will likely replace current NLRB Chair Lauren McFerran—who is up for re-confirmation—with a conservative chair which would flip the board’s majority. But any president’s ability to appoint agency leaders also depends on the party controlling the Senate, which must confirm executive nominations.

“Predicting the outcome of this case is difficult unless you can tell me who’s sitting in the White House next January,” Douglas Brayley, partner at Ropes & Gray LLP, said of the Dartmouth election.

A Republican administration could also bolster efforts to get legislation passed to regulate collegiate athletics. Rep. Burgess Owens (R-Utah.) said student athlete employment presents an “existential threat” to higher education during a hearing after the Dartmouth team voted to unionize, and House Republicans voted a bill out of committee in June that would prohibit them from gaining workers’ rights. Democrats have been largely quiet on the issue, struggling to balance their support of organized labor with a concern for potential upheaval in college sports.

Duff said he believes Congress will eventually have to step in with some kind of legislation.

“Congress can’t agree on what they’re going to have for lunch but when there’s a lot of money involved, like there is here, it’s amazing how quickly they can come together on all kinds of issues,” he said. “We have problems that are so unique to college athletics that they’re not going to want the NLRB making this decision.”