On March 5, 2023 the Dartmouth Men’s Basketball Team voted to organize with the Service Employees International Union, breaking ground as the first group of student athletes to form a bargaining unit in the Country.

In a 3-1 split decision, the National Labor Relations Board rejected Dartmouth’s request for extraordinary relief to stay the election, finding that Dartmouth had not made the requisite “clear showing” that the circumstances necessitated extraordinary relief. In dissent, Member Marvin Kaplan noted that the Regional Director’s decision in Trustees of Dartmouth College, 01-RC-325633 (on which Maynard Nexsen previously reported) was unprecedented, and marked the first time that the NLRB would consider student athletes who do not receive scholarships to constitute “employees” under the National Labor Relations Act who are entitled to its protections.

While the election itself is over for now, many issues remain.  Dartmouth filed a Request to Review the Decision and Direction of Election arguing, without limitation, that the Regional Director’s decision in Trustees of Dartmouth College controverted clear NLRB precedent, erroneously expanded the Act’s definition of “employee”, and tossed the binding precedent for student-athletes established under the NLRB’s Northwestern decision, in which the NLRB declined to exercise jurisdiction over a representation petition filed by certain of the university’s football players who were attempting to unionize.  Dartmouth also argued that adverse and unintended consequences may flow from the NLRB’s decision including its contradiction of other key federal laws.  For example, U.S. immigration law may prohibit international student athletes from becoming employees and receiving certain compensation, else they risk losing their student visa—an issue that previously made itself apparent in the NIL context.

Regardless of how the Dartmouth case ultimately shakes out, this unprecedented result impacts private universities and colleges across the country.