Student-athlete labor push earns first major win
How does the NLRB's ruling in the Dartmouth case affect amateurism - and the NCAA - going forward?
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For the first time in history, the amateurism claim used by the NCAA is under legitimate attack. NIL was the first prong of the attack, but the National Labor Relations Board (NLRB) delivered a decisive blow Monday evening when a regional official ruled that Dartmouth College’s men’s basketball players are university employees and are able to set up a union.
This, obviously, is a massive move towards the employment model of college sports that we’ve seen championed in the past by student-athletes and even Jim Harbaugh. Even though this isn’t a national ruling, and an appeal by Dartmouth and the NCAA is virtually a lock, it still has massive ripple effects that will be felt across colleges and universities nationwide.
What case are we even talking about?
In all of our defense, this one flew under the radar. There had been previous NLRB claims and unionizing attempts by college athletes, including by Penn State football players ahead of the 2022 season, but all had failed until this point.
This case was filed in September 2023 by a Dartmouth chapter of the Service Employees International Union (SEIU), which represents other Dartmouth student workers, on behalf of the college’s men’s basketball team. Arguments were heard in October, including testimony from student-athletes, athletics staff, and other relevant parties. The case was heard by NLRB regional director Laura Sacks in Boston.
On Monday, Sacks released her ruling: Dartmouth’s men’s basketball players are, in fact, employees of the school.
“Because 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, I find that the petitioned-for basketball players are employees within the meaning of the (National Labor Relations) Act,” said Sacks in her 26-page decision.
In a statement to Front Office Sports, Dartmouth officials indicated an appeal was coming.
“Unlike other institutions where athletics generates millions of dollars in net revenue, the costs of Dartmouth’s athletics program far exceed any revenue from the program–costs that Dartmouth bears as part of our participation in the Ivy League,” said Diana Lawrence, Associate Vice President for Communications at Dartmouth. “We also do not compensate our athletes, nor do we provide athletic scholarships; all scholarships are based on financial need.”
A NCAA official commented that the organization is “in the process of reviewing the decision and its potential impact on all schools and student-athletes.”
What does this ruling mean going forward?
The immediate answer lies in Sacks’s ruling, which allows the Dartmouth men’s basketball team to hold an election to determine if they want to enter into a union with the SEIU. The entire team signed the petition to unionize, so we can assume that the vote will pass.
Past that, Sacks’s ruling will move up the NLRB chain for review by the national office and the full labor relations board. From there, the NLRB can give a full ruling that would impact not only Dartmouth student-athletes, but athletes across the nation.
It’s important to note that one case did get to this point. In 2015, a NLRB regional office made a similar ruling as Sacks for Northwestern football players. The NLRB’s full labor relations board declined to rule on the Northwestern case, citing the conference’s public school as a barrier for allowing unionization. They claimed that, because the Big 10 is mostly comprised of public schools, state labor laws supersede the regional office’s ruling and the reclassification of Northwestern players would upset the labor market in an unfair manner for the Big 10.
However, that’s not the case at Dartmouth. Now, we’re talking about a private university in the Ivy League, which is solely comprised of private universities. Without public government funding, the universities are able to supersede state law in specific cases. An easy example for this is that Notre Dame can be a Catholic school, even though public universities cannot have a religious affiliation under separation of church and state, simply because they are a private school. The same general rules apply here.
If we turn our attention to the coming appeal, we can see the true possibility for change. An appeal wouldn’t be heard by the NLRB, it would instead be moved into Circuit Appelate courts, and even the Supreme Court. In those settings, systemic change can be implemented by judges. And the NCAA doesn’t have the best track record there. Just remember Justice Kavanaugh’s concurring opinion in Alston v. NCAA (2021):
"Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate…And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.” - Justice Brett Kavanaugh in his concurring opinion in Alston v. NCAA (2021).
How does this impact the other labor-related cases against the NCAA?
In all reality, the Dartmouth decision might not have the major ripple effect that is expected from a student-athlete-related labor ruling.
I talked to Rick Karcher, Faculty Athletics Representative and Sport Law Professor at Eastern Michigan University, about how the Dartmouth ruling would impact future labor cases. He believes that a lot of the questions surrounding future rulings are unable to be answered because of the makeup of the NLRB, which is appointed by the President and their cabinet. With a Presidential election looming and a vacant seat on the five-person board, the opinion and makeup of the Board could drastically change before the cases are heard, let alone ruled on.
Karcher pointed to a particular case, one in California where the NLRB is assering USC football and basketball players should be recognized as employees, as having difficulties with the regional office’s ruling in Dartmouth.
“This decision really highlights the jurisdictional problem with the NLRB's case out in California where it is asserting the joint employer rule against the conference and the NCAA solely because it doesn't have jurisdiction over public universities,” said Karcher.
He believes that the NLRB is only using the joint employer rule to give it jurisdiction over employers which are not regulated by the National Labor Relations Act (NLRA), which includes all public universities.
But what is the joint employer rule? In a nutshell, the new joint employer rule, which went into effect in December 2023, says where two or more employers exert significant control over the same employees such that they share or co-determine matters surrounding terms and conditions of employment, such as who to hire and fire, hours worked, scheduling, assignment of duties, and sharing day-to-day supervision, they are certified as a joint employer under the NLRA. A joint employer would then be responsible for the payment of wages.
Notably, this is not how professional sports are run, where each individual entity - or team - is seen as a single employer. Instead, the teams are formed as a “multiemployer bargaining unit” that bargains with the players’ association.
So how does this apply to the Dartmouth case? Because the Ivy League is made up only of private schools, they all fall under the NLRB’s jurisdiction, and can then be certified as a multiemployer bargaining unit that would collectively bargain with a players’ association made up of each team’s athletes.
“Because 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, I find that the petitioned-for basketball players are employees within the meaning of the (National Labor Relations) Act.” - Laura Sacks, NLRB Regional Officer in Dartmouth ruling.
Sacks used specific wording in her ruling pointing towards Dartmouth, and the Ivy League as a whole. That’s because the NLRB actually has jurisdiction here, over private schools. In the USC and Northwestern cases, they didn’t, because they don’t hold jurisdiction over public institutions.
So, as Karcher said, the USC case will likely struggle to be interpreted based on this distinction. While USC filed the case as a member of the PAC-12, they’ve since moved to the Big 10, which we’ve already seen the NLRB won’t be able or willing to enforce.
While many student-athlete advocates hope that this case will be the inflection point for student-athletes being recognized as employees and being compensated as such, I don’t believe this particular case has the legs to make that change. Obviously, an appeal could change the rulings in this case, but a similar case in Johnson v. NCAA is already on the docket for the Third Circuit, who denied an NCAA motion to dismiss the case in 2021.
The outcomes of those two cases - Johnson and the Dartmouth appeal - will be the determinants of labor laws in college athletics. The ruling in Dartmouth is a clear step towards student-athlete compensation, and could potentially open up the Ivy League to having to collectively bargain with their athletes, but it’s not going to send a ripple effect through the NCAA like we saw when California passed the nation’s first NIL bill. This process will take a long time, years even, but it is starting.
Edited to better reflect the difference between joint employers and multiemployer bargaining units.