On February 5, 2024, the collegiate sports world exploded as the Regional Director for the National Labor Relations Board’s (NLRB) Region 1 issued a decision in Trustees of Dartmouth College, finding that the players on Dartmouth’s men’s basketball squad were, without limitation, employees of the college.   

This is the second decision by the NLRB that student-athletes are employees. The first decision, Northwestern University, concerned unionization efforts by the Northwestern football team in 2014. In that case, although there was an election, the Board declined to accept jurisdiction over the case, and the petition was dismissed. 

In the years since Northwestern University, the rise of name, image, and likeness (known as NIL) deals that effectively compensate student-athletes for their association with the college or university has led to renewed interest in the potential employee status of student-athletes. 

Section 2(3) of the NLRA defines employee broadly to include “any employee,” subject to exceptions that the Regional Director dismisses without discussion as there is no mention of “students.” In considering if student-athletes qualify as “any employee” the decision focuses on benefits received by the university from the labor performed by the players, the control exerted over the players and their schedules by the university, branding aspects (e.g., players are routinely required to wear Dartmouth branded apparel on and off the court), and benefits received by each player in exchange for their commitment to Dartmouth athletics, even if these benefits comprise academic advantages such as early registration, relaxed admissions standards, and potential scholarship opportunities.

In finding that all players are employees of the university, the Regional Director does not distinguish between students who receive more “benefits” in the form of scholarships and those who do not. A player who walked on – and did not receive scholarships – is an employee just the same as the star player on a full ride. This is an expansion from the football players in Northwestern University, as there only scholarship players were found to be employees. For anyone familiar with recent Board policy, this expansion is unsurprising. 

For now, the players will be allowed to conduct a representation election in the set bargaining unit of “all basketball players on the men’s varsity basketball team.” However, the decision is certain to be appealed to the NLRB and likely to the Court of Appeals on a test of certification. 

The rise of NIL has altered the landscape of college sports, as rewards and benefits that would previously have been cause to revoke an award – such as a Heisman trophy – are now integral parts of recruitment and participation for student-athletes. It remains to be seen whether the Regional Director’s proclamation that all student-athletes, even those without scholarships, qualify as employees does the same.