Over the past few years, the rights of collegiate athletes have continued to expand, with name, image and likeness (NIL) deals being a hot topic of conversation and a way for student athletes to obtain significant compensation. Now, collegiate athletes may have new rights to assert based on the February 5, 2024 decision from the National Labor Relations Board (NLRB) in Trustees of Dartmouth College and Service Employees International Union, Local 560, holding that non-scholarship athletes (including in programs that are not profitable) may be considered employees under Section 2(3) of the National Labor Relations Act (NLRA) and therefore may vote to unionize.

NLRB ruling

In September 2023, members of the Dartmouth basketball team filed a petition seeking to join the local chapter of the union that already represents some of the college’s employees. Dartmouth opposed the petition by, among other things, arguing that the basketball players did not constitute “employees” under the NLRA.

The NLRB rejected Dartmouth’s arguments and found that, due to the broad definition of “employee” under the NLRA, the basketball players at issue constituted employees. This finding was despite the “factual dispute as to how much revenue is generated by the men’s basketball program, and whether that program is profitable.” The following facts supported the decision that the Dartmouth basketball players were employees under the NLRA and had a right to unionize:

• The players generate alumni engagement (and financial donations) and publicity that leads to student interest and applications;
• The players represent Dartmouth when wearing Dartmouth-branded clothing and uniforms;
• Dartmouth exercises significant control over the basketball players’ work—control that is more significant than that exercised over other members of the student body;
• The men’s basketball team performs work in exchange for compensation, even though they do not receive athletic scholarship, because they receive benefits such as “early read” for admission, equipment and apparel, and other fringe benefits.

Drawing a distinction between the basketball players and other student groups, the NLRB rejected the college’s argument that finding the basketball players constituted “employees” could mean other student groups could likewise seek unionization. The NLRB noted that the record did “not suggest that other extracurricular activities dominate students’ schedules” to the extent seen with the basketball players, that these other students were not “recruited and admitted through a special process” based on their skills, nor that these other students “require Dartmouth to employ multiple specialized individuals to monitor funds and brand management.”

The decision ultimately found that the following employees constituted a unit appropriate for the purpose of collective bargaining within the meaning of the NLRA: “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.”

The Board’s decision (if it is affirmed on appeal) would pave the way for a vote to unionize—a vote that, if successful, would allow the basketball players to enter into collective bargaining negotiations regarding such terms as compensation and working conditions.

Dartmouth is expected to appeal the decision.

Takeaways for employers

The decision shows the Board’s continued pattern over the past few years of expanding the application and enforcement of various provisions of the NLRA. Importantly, the decision (even if affirmed on appeal) does not constitute binding precedent on other institutions and does not address state-run institutions. However, based on decisions such as this one, employers (and especially those operating in collegiate athletics) should be mindful that the NLRB interprets “employee” broadly, and may find employee status under the NLRA even where non-traditional compensation is employed.