March Madness in February? Unionization Heats Up College Sports Landscape

By Evan Conder - Shawe & Rosenthal LLP

February 9, 2024

On February 5, 2024, Laura Sacks, Regional Director for Region 1 of the National Labor Relations Board (“NLRB”), ruled that players on Dartmouth’s men’s basketball team are “employees” within the meaning of the National Labor Relations Act (“NLRA”).  While this decision may not come as a surprise in light of NLRB General Counsel Jennifer Abruzzo’s GC Memo 21-08 titled “Statutory Rights of Players at Academic Institutions (Student Athletes) Under the National Labor Relations Act”, this decision is likely to accelerate the transformation of college athletics that has already began with the NCAA’s suspension of name, image and likeness rules.

Service Employees International Union, Local 560 (the “Union”) petitioned to represent Dartmouth’s basketball players after all 15 members of the team signed a petition to be represented by the Union, asserting that Dartmouth men’s basketball players are employees within the meaning of the NLRA.  Dartmouth argued that players on its men’s basketball team did not meet the common law test for employment because the players “do not perform work in exchange for compensation[,]” as it provides no athletic scholarships to players.  It also argued that it generates no profit from its men’s basketball program, so there is no economic relationship between the members of the men’s basketball team and Dartmouth.

Dartmouth further argued that the basketball players should not be considered employees because it did not exercise sufficient control over them.  It asserted examples including players missing practices in favor of academic pursuits without penalty and a player missing away games because he did not want to miss a class without penalty.

The Union countered Dartmouth’s argument with respect to compensation by pointing out that while players don’t receive a weekly paycheck or athletic scholarships, they do receive 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.  The Union also emphasized that rules of the Ivy League, the athletic conference of which Dartmouth is a member, allow member institutions to provide recruited athletes with an estimate of their financial aid in January of their junior year in high school, known as an “early read”.

With respect to the factor of control, the union emphasized that Dartmouth exercised significant control over players by designing and monitoring summer workouts, requiring them to sign handbooks and other documents, dictating the time players spend practicing, directing practicing, and scheduling road trips such that meal and sleep periods occur at the coaching staff’s direction.

Regional Director Sacks found the arguments of the Union more compelling, concluding that the petitioned-for basketball players are employees within the meaning of the NLRA “because Dartmouth has the right to control the work performed by the men’s varsity basketball team, and because the players perform that work in exchange for compensation[.]”

College students who are undoubtedly reading this blog between classes, their extracurricular activities, and parties may wonder if they have the right to organize under the NLRA.   Regional Director Sacks addressed this hypothetical in her opinion, stating that extracurricular activities in general do not dominate students’ schedules to the extent that students are encouraged to take classes at particular times, miss those classes because of the extracurricular activity’s travel requirements, or that those students are admitted through a process similar to an early read.

The decision will likely be appealed to the NLRB, but the ultimate outcome is unlikely to change given the NLRB’s makeup, meaning that there is even more change to come in college athletics. It’s a whole new interpretation of “pay to play”…

www.shawe.com