Ever-Expanding Jurisdiction of the National Labor Relations Board

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Authors: Matthew A. Fontana , Sarah C. Blackadar , Jillian S.B. Lukacik

At a Glance

The decision held that the basketball players were employees of Dartmouth because the college had the right to control their work by scheduling practice times, strictly managing away-game travel, and issuing a handbook of rules, which players must follow; and because the college compensated the players for their work.
The decision dismisses Dartmouth’s contention that athletic clothing and equipment, which the school provides equally to all team members free of charge, is not salary because the college does not provide more of these items to its starters compared to nonstarters.
While the Board rejected Dartmouth’s request to stay the election pending appeal, a full appeal of the merits of the regional directors will soon see the Board members weigh in on this extraordinary extension of the agency’s jurisdiction into amateur athletics.

On the eve of the NCAA’s March Madness Tournament, the National Labor Relations Board (the Board) produced a little March madness of its own when it held the first-ever union election for a collegiate basketball team. On March 5, 2024, Dartmouth College’s men’s basketball team voted 13-2 in favor of unionizing with Service Employees International Union, Local 560.

Unions have sought to organize both student-athletes and graduate assistants and fellows on college campuses across the country with mixed results. Just last year, the same NLRB regional director that ordered this election denied an election for a bargaining unit of Massachusetts Institute of Technology’s graduate fellows. This decision, which ultimately applied the National Labor Relations Act (the Act) to amateur athletes, struggles to differentiate this case from others where the Board declined jurisdiction.

The decision held that the basketball players were employees of Dartmouth because the college had the right to control their work by scheduling practice times; strictly managing away-game travel; issuing a handbook of rules, which players must follow; and because the college compensated the players for their work.

But Dartmouth, an Ivy League school, prohibits all forms of financial aid except need-based aid for students, and none of the team’s players participate in NCAA’s name, image and likeness (NIL) program. So, the decision is left relying on items like sneakers, travel arrangements, and the small allotment of family-and-friends tickets for players in order to prove that players are compensated for their work.

The decision dismisses Dartmouth’s contention that athletic clothing and equipment, which the school provides equally to all team members free of charge, is not salary because the college does not provide more of these items to its starting players compared to its second- or third-string players. In response the decision states, “the Employer cites no case, and I can find none, which stands for the proposition that employee status is tied to the size of one individual’s salary in relation to that of his colleagues.”

As mentioned, Dartmouth is not the first university to deal with student unionizing campaigns. In 2016, the Board found that graduate student assistants at Columbia University were employees of the school, reversing the Board’s holding in a similar case with Brown University just a decade earlier. In 2015, an NLRB regional director initially permitted the student-athletes, on athletic scholarship, on Northwestern University’s football team to vote in a Board election. However, when the university appealed the decision, the Board declined to assert jurisdiction, holding that to do so would not advance the purposes of the Act.

Analysis

This decision attempts to contend with the decision in Northwestern University, but never fully explains why at Dartmouth, where not one single student is on an athletic scholarship, every member of the men’s basketball team was eligible to vote in a Board election. Ultimately, the regional director found that, in addition to the compensation discussed above, Dartmouth had the right to control the work of the men’s basketball players because the coaching staff set practice times; provided the players training plans; monitored their progress; and arranged team travel, lodging and meals for away-games.

The decision also relied on the fact that Dartmouth does not allow its players to play professional basketball during the league off-season as evidence that Dartmouth controls the work of men’s basketball players. Yet, the decision ignored the fact that Dartmouth can only compete in the Ivy League or NCAA competition if it fields a team of true amateurs, and so it cannot allow student-athletes who are paid to play on its teams.

In fact, there are only two limited exceptions to these rules on “compensation” for players: (1) schools are permitted to offer athletic scholarships to their student-athletes, and (2) players now have the option to monetize their name, image and likeness (NIL) rights. However, no Dartmouth player received an athletic scholarship, and none participated in the NIL program.

The decision also ignored the implication of unique university obligations under Title IX to provide equal opportunities to the men’s and women’s sports teams. As the decision itself notes, the two other teams competing for practice space with the men’s basketball team are women’s sports teams. Thus, even on nonpay issues, Dartmouth cannot bargain with the men’s team over, amongst other things, their first choice of practice times without taking away that opportunity from its women’s teams.

The legal arguments against, and complicated practicalities of, implementing the regional director’s decision to assert jurisdiction over the Dartmouth men’s basketball team further support the Board’s holding in Northwestern University, that asserting jurisdiction over the amateur athletes on collegiate sports teams does not further the purposes of the Act. While the Board rejected Dartmouth’s request to stay the election pending appeal, a full appeal of the merits of the regional directors will soon see the Board members weigh in on this extraordinary extension of the agency’s jurisdiction into amateur athletics.

Conclusion

This decision is only the beginning. Given the number of complexities unique to collegiate athletics that this decision did not address (as highlighted above), we expect the NLRB to continue to grapple with the extension of rights under the Act to collegiate athletes. Universities and athletic departments should continue to monitor these decisions and assess, based on these decisions, their potential exposure to union organizing.