Dartmouth Basketball Players Vote to Unionize after NLRB Declares Them Employees

In a historic election on March 5, 2024, the Dartmouth College men’s basketball team voted 13-2 to unionize. The vote took place exactly one month after an NLRB regional director ruled that Dartmouth men’s basketball players are employees under the National Labor Relations Act (NLRA, or the Act). The regional director’s decision marked the first time that an NLRB office found that certain college athletes should be deemed employees under the NLRA. The Dartmouth election is also the first since the NLRB General Counsel issued a memo in 2021 opining that certain college athletes should be classified as employees under the Act and should have the right to unionize.

While the Dartmouth basketball players’ victory is unprecedented in many ways, their success is the latest culmination of a series of recent developments favoring college athletes who seek statutory recognition as employees. Moreover, the regional NLRB office’s recognition of Ivy League athletes with none of the name-brand or financial clout of their NCAA Division I counterparts will no doubt encourage similar organizing efforts by other college athletes, with potentially significant consequences for higher education institutions and athletic conferences across the country.

The Dartmouth saga began last September, when fifteen Dartmouth men’s basketball players filed a petition with the NLRB requesting an election to join the local chapter of the Service Employees International Union. Previously, the NLRB had declined to exercise jurisdiction over a petition filed in 2015 by Northwestern University football players who were seeking to form a union. At the time, the NLRB held that even if the players could be classified as employees, addressing the case would run counter to the Act’s purpose of creating a stable labor environment since Northwestern, as a private university, was the only school in the Big Ten Conference over which the NLRB had jurisdiction.

On February 5, 2024, however, NLRB regional director Laura Sacks ruled that the Dartmouth men’s basketball players are employees under the NLRA. The regional director cited the following reasons: (1) the basketball players perform work that benefits Dartmouth, (2) Dartmouth exercises significant control over the basketball players’ work, and (3) the players perform work in exchange for compensation, including equipment, apparel, lodging, tickets, access to special admissions and other programs, and other fringe benefits. Sacks concluded, “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 Act.”

In response to the university’s argument that this expansive definition of “employee” would encompass any student who participates in an extracurricular activity and receives financial aid, Sacks countered that no other extracurricular activity controlled students’ schedules to the extent that the athletics program did, nor did any other student activity require the university to employ specialized individuals and put in place special recruitment and admissions processes for their benefit in exchange for their skills.

Notably, Sacks dismissed the university’s arguments that the players were not employees because they did not receive athletic scholarships (as Ivy League colleges and universities do not offer athletic scholarships), the university did not profit from the basketball program, and the athletes were allowed to miss practices for academic reasons. Sacks emphasized that “the profitability of any given business does not affect the employee status of the individuals who perform work for that business.” Instead, the decision listed alumni engagement, donations, and publicity as examples of benefits that the players provided to Dartmouth. Similarly, Sacks stated that while the Dartmouth players did not receive athletic scholarships, they are “compensated in exchange for performing specific tasks, including practicing and attending games,” and receive “the extent of individual support and special consideration received by those individuals who participate in high-profile Division I collegiate athletics.”

Sacks distinguished the present case from the NLRB’s Northwestern decision by pointing out that since the Ivy League consists entirely of private universities, the NLRB’s concern about creating a potentially unstable labor environment between a privately run university and other state-run universities within the Big Ten Conference did not apply here. Sacks stated, “I find that asserting jurisdiction would not create instability in labor relations.”

The Dartmouth decision strikingly expands the definition of compensation for college athletes. The NLRB General Counsel’s 2021 memorandum considered that athletic scholarships at NCAA Division 1 institutions could constitute compensation that would support a finding of employee status. However, Sacks’ decision, acknowledging that Dartmouth basketball players did not receive athletic scholarships, instead considered other benefits—including less tangible benefits such as exclusive access to a student-athlete academic success program—as part of the compensation that the players received from the college. Sacks relied in part on the 2000 NLRB decision Seattle Opera Association for the proposition that even auxiliary members of an organization were employees within the meaning of the NLRA when they received and expected economic benefits (however rudimentary) from the employer, were critical to the organization’s success, and were subject to the employer’s control.

The larger consequences of the Dartmouth decision are far from clear. The regional director’s decision and the Dartmouth union election follow closely on the heels of a regional NLRB’s complaint last year against the NCAA, Pac-12 Conference, and the University of Southern California alleging that the three institutions acted as joint employers of USC men and women’s basketball and football players and violated federal labor laws by failing to treat the athletes as employees. (See our previous alerts on the NLRB complaint here and here.) While that case is still pending, a ruling in favor of the NLRB’s joint-employer argument could expand the reach of the Dartmouth decision to include state institutions that are normally outside the scope of the NLRB’s jurisdiction.

In addition to the decision’s potential impact on college sports at large, there are other tricky legal questions should the Dartmouth decision stand. For instance, classifying college athletes as employees could impact the immigration status of athletes who are attending college in the U.S on a student visa. Furthermore, if only “certain” athletes are considered employees and allowed to unionize, the implications for gender equity in athletic programs under Title IX are unclear, given the already existing disparities in men and women’s college athletics, particularly at elite levels.

Since the Dartmouth decision was issued, the university has filed an appeal with the full national-level Board. While the Board rejected the university’s emergency request to stay the election, one dissenting Board member has already expressed disapproval with the regional director’s decision. We will continue to monitor these developments closely and provide regular updates. Please reach out to the authors of this alert or any Franczek attorney if you have any questions about the Dartmouth decision and how it may impact your institution and its programs.