So, Dartmouth Won’t Play Ball with the Union…

By Fiona Ong - Shawe Rosenthal LLP

March 21, 2024

As our associate Evan Conder reported in a blog post last month, a Regional Director for the National Labor Relations Board issued a game-changing decision that players on Dartmouth’s men’s basketball team are “employees” within the meaning of the National Labor Relations Act (“NLRA”). The players then voted (13-2) to unionize. But now, Dartmouth is refusing to negotiate with the players’ chosen representative, the Service Employees International Union, Local 560.

Whether college athletes are statutory “employees” has been an issue of widespread interest and controversy for quite some time. Back in 2014, another NLRB Regional Director found that scholarship football players at Northwestern University were employees. As our partner Mark Swerdlin observed in a blog post at the time, the decision was largely based on the amount of control that the football program exercised over the students – i.e., the rigorous practice schedule, mandatory requirements, etc.   According to the Regional Director in that case, this level of control meant that Northwestern was effectively acting as the players’ employer – and the players’ scholarships were effectively their pay.

But on appeal, the Obama NLRB juked, reversing the Regional Director’s ruling, declining to exercise jurisdiction over the players, and punting on the issue of whether those players are, in fact, employees under the NLRA.

Things were pretty quiet for awhile, until 2021, when NLRB General Counsel Jennifer Abruzzo issued GC Memo 21-08, titled “Statutory Rights of Players at Academic Institutions (Student Athletes) Under the National Labor Relations Act.” In that memo (that we wrote about here), GC Abruzzo asserted her position that certain athletes at academic institutions are employees.

Well, the National College Players Association, a college athlete advocacy group, took that game plan and filed an unfair labor practice (ULP) charge in 2022 with the NLRB, alleging that the University of Southern California (USC) misclassified football and basketball players as student-athletes rather than employees. As our partner Chad Horton explained in another blog post, a Regional Director agreed and issued a complaint, which is currently pending before an NLRB Administrative Law Judge.

Meanwhile, back in the Ivy League, the Dartmouth basketball team sought to unionize. Like the Northwestern football players, they argued that Dartmouth exercised significant control over their activities. Although they did not receive money (in the form of scholarships) from Dartmouth (because Ivies don’t do athletic scholarships, in case you didn’t know), they claimed they were “paid” through various perks and benefits that they received, such as room and board for a portion of the year, equipment, apparel, tickets to games, footwear, access to medical and nutritional professionals, the use of certain facilities, and academic support. (By the way, is anyone else wondering how those Dartmouth players are planning to pay their union dues? Will they pass along their tickets to the union? A t-shirt, maybe?) As mentioned above, a Regional Director agreed with the players and the players then voted to unionize.

However, on March 18, 2024, Dartmouth issued a statement that it was declining to bargain with the SEIU. Dartmouth reiterated its position that, “Varsity athletes in the Ivy League are not employees; they are students whose educational program includes athletics.” The school has acknowledged that its refusal to bargain will likely result in the union filing a ULP charge that will end up in front of the full NLRB. If the NLRB then upholds the determination that these players are employees, Dartmouth will not give up the fight. It has stated that it will appeal any such decision to federal court.

So, it appears that Dartmouth is actually willing to play – just in a different court.

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