In a hotly contested case, the NLRB regional director for the region covering most of New England has found that Basketball Players at Dartmouth are the university’s “employees” under the National Labor Relations Act.  They can now vote on whether to form a union.  This case may have drastic consequences on athletics in higher education, which has been subject to legal attacks on various fronts over the past decade. 

The finding of employee status was largely based on the control that Dartmouth – like all other universities’ athletic program – exercises over the players and the non-monetary compensation given to the players in return for their participation.  This non-monetary compensation included their uniforms and team equipment, scholastic tutoring, as well as an increased chance for enrollment at the Ivy League School. 

Unlike student-athletes at other programs, Dartmouth and other Ivy League schools do not generally award athletic scholarships – so the “employee” relationship in this case is based on the “work” of playing basketball in exchange for unforms and other perks of being a student-athlete.  This finding demonstrates the minimal requirements to be considered an “employee” under federal labor law. 

Dartmouth is likely to appeal the decision.  The appeal that will likely follow will face obstacles, but the outcome is not certain.  The last time the NLRB addressed collegiate athletics was in a 2015 case involving Northwestern and the NLRB declined to exercise jurisdiction over the football players seeking unionization.  That decision was based primarily on the complexities in navigating unionization for individuals and athletic programs that may be public (no NLRB jurisdiction) or private and are subject to various regulations from conferences and the NCAA.  The NLRB’s “punt” in 2015 may be repeated or it may directly address the issue this time around. 

The wave of unionization in higher education is likely to continue, ranging from grad students to RA’s, and now potentially including student athletes.  Universities of all sizes should be prepared to address unionization of any individual who performs some kind of work in exchange for any arguable form of compensation. 

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