What NLRB decision on Dartmouth basketball means for college sports

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Andy Staples Breaks down the NLRB and Dartmouth Basketball Situation | 02.05.24

As Dartmouth basketball players and coaches finished up practice around 5 p.m. ET on Monday night, news had already started to spread that Big Green players are now considered university employees.

The news sent ripples across the college sports landscape. Dartmouth players had not received a warning, instead being notified by headlines and texts on their phones. A ruling from the National Labor Relations Board (NLRB) regional director could have come around Thanksgiving or Christmas. Instead, it came down Monday with nearly no warning.

The decision could serve as the first domino that leads to an employee model in college sports. The NLRB decision was not a stunning surprise, as the NLRB general counsel has openly talked about her beliefs that college athletes are employees. The National Labor Relations Board enforces U.S. labor law.

Plus, the NLRB regional director ruled Dartmouth athletes have the right to hold a union election. A formal date has not been set. Dartmouth is expected to appeal.

But Monday’s decision is viewed as a sign of a new era for college sports.

“I don’t think many people expected Dartmouth men’s basketball players, who play in the Ivy League and do not receive athletic scholarships, to be the next wave of athletes who were classified as employees,” Tulane sports law professor Gabe Feldman said. “This is one of the lessons we’ve all learned from the Northwestern case is that this is still a preliminary decision. It’s subject not only to appeal to the full NLRB. But then also could be appealed in federal court. So, we still have a long way to go.

“But obviously, this is another significant step toward college athlete unionization. More broadly, college athletes being recognized as employees. Even more broadly than that, college athletes having a true say in their compensation.”

Dartmouth employment status not unprecedented

Dartmouth player representatives Cade Haskins and Romeo Myrthil called the ruling “a significant step forward for college athletes” in a statement released Monday night. They also announced they plan to form the Ivy League Players Association for basketball players across the league.

Haskins, Myrthil and the rest of their Dartmouth teammates are not in unchartered water. Roughly 10 years ago, Northwestern football players received the same ruling at the regional level. The decision was later overturned in 2015 at the national level because the NLRB only applies to the private sector. The NLRB ruled denied Northwestern employee status because the school was in the Big Ten, a conference filled with mostly state schools.

A decade later, the tenor of the national conversation has changed.

The NCAA is facing multiple legal pressures that would deliver a severe blow to the enterprise. And Dartmouth is a private institution in a league filled with private universities.

“I think there are two things to watch for from this ruling. No. 1, what do the players actually vote?” said Jason Stahl, the founder of the College Football Players Association. “When is the election date set? What do they then do when they go and actually vote whether they want a union or not? There are many union elections where the election gets called for. Then people go in with enough cards to call for the election. And then the union doesn’t actually get its votes down. It’s a no vote.

“We have to wait because there’s going be heavy pressure on these guys now to vote both ways.”

What does this mean for rest of college sports?

The NLRB decision classifying Dartmouth basketball players as employees of the institution is a test case, in a sense. While the appeal process remains to be seen, Dartmouth players will hold a union election. If the vote decides on Dartmouth basketball players forming a union, the team will have the opportunity to sit down and collectively bargain with the institution.

Many always expected this to play out at the highest levels of college sports, where the most dollars are being spent on football and basketball programs. But the NLRB decision on Dartmouth could show that any college athlete is an employee, Feldman says.

“I think it makes it difficult for schools to argue that any athletes are not employees either seems to open the door for almost all athletes of all divisions to argue their employees,” the sports law professor said. “And I think it certainly strengthens the case at the higher levels, where they are exercising more control, there is more pressure, there is greater travel and there are more benefits and compensation headed their way.”

HOW MANY LEGAL THREATS IS NCAA FACING?

The Dartmouth ruling could lead more athletes across the nation to take action to become classified as employees. The process could move faster, too, since the New England regional director already made a decision.

Another employment scenario is playing out on the West Coast, as the NLRB Los Angeles regional office alleges USC, the Pac-12 Conference and the NCAA are joint employees of USC’s football and men’s and women’s basketball players. The hearing will resume later this month.

In addition, plaintiffs in the Johnson v. NCAA case, former Villanova football player Trey Johnson and other Division I athletes are asking that athletes be deemed employees subject to the Fair Labor Standards Act. That requires covered employees to be paid minimum wage and overtime pay, much like non-athletes at colleges who participate in work-study programs.

Will judges protect NCAA’s amateur model?

Time appears to be ticking for the NCAA.

President Charlie Baker has tried to lobby Congress for federal relief focused on NIL restrictions. But with the mounting pressure of an employment model, Baker could pursue lawmakers to write legislation that college athletes are not employees. Since 2020, more than 10 hearings have been held in Washington, D.C.. Plus, no legislation has even made it to a vote.

Baker is also working with conference commissioners and stakeholders on his Project D-I plan, which would create a new subdivision of college sports. The SEC and Big Ten announced a joint advisory committee last week. It’s a sign that the two most powerful conferences could be taking their fates into their own hands.

The NLRB regional director’s decision on Dartmouth could be a telling sign that more and more judges do not want to protect the NCAA’s amateur model.

“Ultimately, the NCAA has received deference for the last several decades, because courts wanted to protect the uniqueness of college sports and wanted to protect amateurism, wanted to protect the academic ideals,” Feldman said. “There now seem to be more and more judges who are less willing to give that deference and don’t see college sports as different.”