NLRB regional director: Dartmouth men's basketball players are employees of college

A National Labor Relations Board regional director Monday ordered a union election for the men’s basketball players at Dartmouth, concluding that the athletes are employees of the college within the meaning of the National Labor Relations Act.

This is a consequential development that could potentially pave the way for at least some athletes to usher in an employment model in college athletics — a scenario that could radically reshape the industry.

Laura A. Sacks, the Boston-based NLRB regional director, ruled, “Because Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform that work in exchange for compensation, I find that the petitioned-for basketball players are employees within the meaning of the [National Labor Relations] Act.”

The decision comes months after four days of witness testimony in October during a virtual pre-election hearing. On Sept. 13, a petition filed with the NLRB by the Service Employees International Union identified 15 players from Dartmouth as seeking representation. 

The date of the election has not yet been determined.

“It is a positive step – it is one further step,” Michael Hsu, co-founder of the College Basketball Players Association (CBPA), told On3 on Monday. Hsu himself in October filed a separate unfair labor practice complaint with the NLRB against the Ivy League.

“We believe Dartmouth will appeal this, just like the Northwestern case. We’ll see if they actually can conduct the vote before it gets appealed to the NLRB. Then the question will be how long will the NLRB wait around before they make a decision. I think this is going to actually put pressure on the whole system, including what the NCAA is going to do next.”

Mit Winter, a college sports attorney with Kennyhertz Perry, told On3 the decision was significant for a couple of reasons.

“It shows how the NLRB and courts are likely going to assess and rule on the employment issue going forward,” Winter said. “Plus, it shows that the future of college athletics will likely involve a model where at least some of the athletes are employees, will unionize, and will collectively bargain rules on things like player compensation and movement.”

In 2014, an NLRB regional director also ruled that Northwestern football players were employees and ordered a union election. But when the case came before the board, the board explicitly did not decide whether the football players were employees. The reasoning: Northwestern was the only private school that competed in the Big Ten Conference. The board stated that in such a situation, asserting jurisdiction would not promote stability in labor relations due to the variety of state labor laws that would apply to football teams at state-run institutions.

As the 26-page Dartmouth ruling states, “Although the Board in Northwestern University declined to exercise jurisdiction over the players at that university, nothing in that decision precludes the finding that players at private colleges and universities are employees under the Act.”

What’s more, as Tulane sports law professor Gabe Feldman noted, the fact that all Ivy League schools are private makes it more likely that the full NLRB will uphold the ruling because all Ivy League athletes will have the ability to unionize, unlike the situation with Northwestern in the Big Ten.

‘Student-athlete handbook functions as employee handbook’

As expected, the question of how much control Dartmouth exerts over athletes played heavily in the decision.

The ruling states, “Dartmouth exercises significant control over the basketball players’ work. The players are required to provide their basketball services to Dartmouth only. The Student-Athlete Handbook in many ways functions as an employee handbook, detailing the tasks athletes must complete and the regulations they may not break.”

Additionally, the ruling details that Dartmouth determines when players will practice and play, as well as when they will review film, engage with alumni, or take part in other team-related activities. When the basketball team participates in away games, the ruling states, Dartmouth determines when and where the players will travel, eat, and sleep.

Special permission is required for a player to even get a haircut during a trip, the ruling states. Dartmouth argues that this level of control is required for player safety and is no different from the regulations placed on the student body at large, the ruling states, adding that there is no evidence that other members of the student body are so strictly supervised when they leave the confines of Dartmouth’s campus.

How does NLRB decision impact college sports?

The overarching employee question on the table has sparked intensifying industry debate in recent years: Are athletes university employees under the National Labor Relations Act? And, if so, what does that mean for the college sports enterprise?

A growing number of legal experts believe college athletics remains on a slow march toward an employee paradigm, which would dramatically reshape the industry. It would potentially usher in collective bargaining for athletes and for the first time lead to schools or conferences sharing a piece of the broadcast rights revenue pie with those who play in the televised games – the athletes.

Tom McMillen, CEO of LEAD1 Association, has told On3 that college athletics is on an “inexorable road” toward some athletes being deemed employees of their universities.

The employment train is barreling down multiple tracks right now, in addition to the Dartmouth case.

The latest chapter in the NLRB trial involving USC, the Pac-12 Conference and the NCAA concluded last week in Los Angeles. The hearing will resume later this month. Inside an NLRB regional office, Administrative Law Judge Eleanor Laws is presiding over an all-important case that alleges the three charged parties are joint employees of USC’s football and men’s and women’s basketball players.

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. 

HOW MANY LEGAL THREATS IS NCAA FACING?

As for the Dartmouth case, the four-day pre-election hearing in October offered clear, illuminating – if not somewhat predictable – arguments from both sides.

Dartmouth junior basketball player Cade Haskins laid out the conditions and school protocols that he believes should warrant the basketball players being formally deemed employees of the college. 

On the other hand, one of the arguments Dartmouth’s legal team espoused was that the players there are not employees because, unlike men’s basketball programs elsewhere, the Ivy League program loses several hundred thousand dollars per year.

Dartmouth attorneys asserted that the college’s men’s basketball players are students first and athletes second.

Attorneys drilled down on issue of control

The line of questioning from the athletes’ attorney, John Krupski – who sat before a framed photo bearing the words “Collective Bargaining Matters” – most often drilled down on the notion of control. Exactly how much control do the men’s basketball coaches exert over their players?

Krupski had Haskins walk through in meticulous detail his weekly basketball itinerary. A particular focus was on meals and hotels paid for by the college, strength and conditioning sessions, mandatory practices and meetings – and the consequences of missing any of those. Krupski several times referenced the phrase “optional mandatory.”

In Dartmouth attorney Ryan Jaziri’s cross-examination of Haskins, Jaziri focused on whether coaches explicitly prohibit players from taking classes that conflict with practice time, or merely encourage them to avoid conflicts. Haskins said you can select a class time that conflicts with practice time but “we’d be asked to change that class slot.”

Dartmouth players give NIL rights to school

Also notable during his testimony, Haskins laid out that athletes agree to give their NIL rights to Dartmouth without receiving compensation. 

Another witness, Dartmouth’s Taurian Houston, executive associate athletics director for administration, testified that athletes are “not required” to sign the NIL waiver releasing their NIL to Dartmouth. If they do not sign, he added, they would not be kicked off the team but the school could not submit their names for – presumably league – awards or list the players on the team’s website roster. 

In cross-examination on the topic, Krupski asked about the implication of the NIL waiver. Houston said athletes need to sign the waiver “in order for us to promote their participation.” But if they don’t sign it, he noted, they still can participate. 

During his testimony, Houston also acknowledged that the college uses athletes’ images to solicit donations from boosters.

Why do schools pay managers but not athletes?

Another interesting back-and-forth occurred on the subject of paid student team managers.

Krupski hammered home that student managers can be compensated by the college through a work-study program. Yet, he stressed, the athletes on the team who perform on the court are not permitted to be compensated by the school. 

Dartmouth attorney Jaziri had Houston walk through distinctions between (paid) student managers and players: managers don’t receive uniforms, don’t have to meet the same academic eligibility thresholds as players, and aren’t listed on the official squad list provided to NCAA.

Krupski’s main points: He repeatedly stressed the “unilateral control” he said Dartmouth has over athletes. And he called Dartmouth’s arguments “circular” and said those “self-fulfilling” arguments “defy common sense.”

He clearly laid out what he views as flawed NCAA/Ivy League/Dartmouth rationale:

The NCAA stipulates that amateur athletes can’t be paid by schools. 

So when an athlete asks why he can’t be paid, the NCAA says, “Because you’re an amateur.”

And so if you are paid, you’re not an amateur, which means you’re not an eligible college athlete — because the NCAA said amateurs can’t be paid.

On the other hand, Dartmouth attorney Joe McConnell referenced as precedent the 2015 decision by the five-member NLRB Board, which declined to assert jurisdiction in the case of Northwestern football players. That decision came a year after a regional director deemed the athletes university employees.

It’s a different climate now.

Public opinion has dramatically shifted. And unfair labor practice charges against schools, leagues or the NCAA loom for the NLRB. Most prominently, an NLRB hearing for the complaint against the NCAA, Pac-12 and USC continues this month.