In December, this blog alerted readers that in Memorandum GC 21-08, the National Labor Relations Board’s (NLRB) General Counsel Abruzzo declared that certain student-athletes “at Academic Institutions are employees under the Act, . . . . [and] misclassifying such employees as mere “student-athletes” and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the Act.” Since then, the NLRB has undertaken efforts on both coasts to realize that vision.

Specifically, in the last year or so, the NLRB has been pushing several cases forward to try to create favorable legal precedent in this area. The most advanced case pending before the NLRB is SEIU Local 560 v. Trustees of Dartmouth College. In that matter, the SEIU is attempting to convince the NLRB to hold that Dartmouth College’s basketball players, who are not even on athletic scholarships, are employees under the Act.  

The hearing in the Dartmouth matter was held in October of 2023. On February 5, Laura Sacks, Regional Director of Region 1 of the NLRB, issued her 25-page decision holding that the varsity basketball players of Dartmouth are employees under the National Labor Relations Act (Act). Regional Director Sacks ordered that a union election be held to determine if SEIU, Local 560 held majority support of the employees (basketball team).  

The election took place on March 5. The basketball team voted 13-2 in favor of being represented by the union. The Board certified the election results and held that SEIU, Local 560 is the certified representative for the purposes of collective bargaining for “all basketball players on the men’s varsity basketball team employed at the Employer’s Hanover, New Hampshire location, but excluding managers, guards, and professional employees and supervisors as defined in the Act.”

This battle is far from over. Earlier this week, Dartmouth announced that it is refusing to bargain with the SEIU, despite the NLRB order and its legal obligation to do so if the athletes are employees. “Given Dartmouth’s decades-long commitment to athletics as an extension of our academic mission, we believe the regional director has made an extraordinary mistake in finding these students are employees,” the school explained in its press release. Dartmouth’s next play will likely be to ask the full NLRB to overturn Director Sacks’ decision. However, most experienced labor lawyers, including this author, do not expect the full NLRB to overturn Director Sacks’ decision. 

What is likely next in the playbook for the SEIU is to file an unfair labor practice charge with Region 1 of the NLRB against Dartmouth College for refusing to bargain. The NLRB is likely to prosecute that charge, and new hearings will occur. Ultimately, given the position of the NLRB’s General Counsel, we should expect that the Board will find a violation and issue a bargaining order. At that point, Dartmouth will take the opportunity for review by the federal courts. 

Given the issue's importance, we can expect extensive legal proceedings, and ultimately, the United States Supreme Court may decide whether student-athletes qualify as employees under the Act.  So far, the federal courts have not been very friendly to the NCAA and its traditional, decades-long “student-athlete” model. See, e.g., NCAA v. Alston 594 U.S. __, 141 S. Ct. 2141 (2021) (holding that the NCAA cannot prohibit student-athletes from receiving compensation for their Name Image and Likeness). However, it remains unclear whether the courts and, ultimately, the United States Supreme Court are willing to go as far as the NLRB and declare that the Dartmouth basketball players are actually employees, especially when, unlike most Division I institutions, Dartmouth does not award athletic scholarships to its varsity athletes.  

Meanwhile, on the West Coast, Region 31 of the NLRB continues to prosecute an entirely separate unfair labor practice charge against the NCAA, the Pac-12 Conference, and the University of Southern California, alleging that the USC athletes on its football team, and its men’s and women’s basketball teams are employees under the Act and that the restrictions and rules of the NCAA, the Pac-12 Conference, and USC unfairly restrict these athlete employees from exercising their rights under Section 7 of the Act. The parties in this case have engaged in motion practice, but this matter has yet to come to a hearing on the merits.  

College athletics (especially college football and basketball) are a huge industry in our country and a major player in the sports marketplace and sports media. There are billions of dollars at stake. The regulation of this industry is getting a lot of attention right now. The NLRB is involved. The courts are involved. Congress could get involved. 

It remains unclear how this will ultimately shake out and how the athletes competing in high-level college sports will be treated. However, if the courts ultimately determine that college athletes, or certain college athletes, are employees, universities across the country are likely going to face lawsuits from former and current athletes and will be facing the prospect of having to pay wages to athletes, forcing all universities to look at their athletic programs and reevaluate whether or not it makes financial sense to continue to participate in intercollegiate athletic competition and if so how to properly structure their programs.  

One thing we do know is that more change is coming. As the schools, the NCAA, the unions, and the NLRB all battle this out, we will continue to provide updates on key developments. Stay tuned for the final score. Just know that the game might be a long one.