“Dartmouth has the right to control the work performed by the men’s varsity basketball team, and because the players perform that work in exchange for compensation, the petitioned-for basketball players are employees within the meaning of the Act.” – National Labor Relations Board Regional Director, Laura Sacks
The National Labor Relations Board (NLRB) made a historic ruling earlier this week (February 5, 2024), declaring in no uncertain terms, that Dartmouth University’s Men’s basketball players are employees of the University and have the ability to vote for unionization. In the face of surging legal and legislative challenges to to the traditionally-rigid amateur collegiate sports model, this significant decision is likely to hasten the ongoing shift towards professionalizing college athletics. The following is a synthesis of the NLRB’s decision points and commentary on how they made their decision.
Takeaway #1: Dartmouth University argues there is no expectation of compensation, thus no employment.
Dartmouth University argues that Men’s Basketball players should not be considered employees, citing their lack of a genuine expectation to earn an income as a key factor. At the core of this argument is the 2015 NLRB decision concerning Northwestern University’s football team. Here they use the NLRB’s own justification, arguing that if the NLRB didn’t find a compensation relation in that precedent-setting decision, no relationship should be found in this case.
Dartmouth’s association is explicit: “[The NLRB Regional Director] determined that walk-ons were not employees because they did not receive compensation in exchange for their athletic services.” This argument hinges on the fact that Dartmouth does not provide academic or athletic scholarships to its student-athletes unless financial necessity dictates it. Dartmouth only grants scholarships to student-athletes when financial circumstances require it. According to Dartmouth’s logic, scholarships fall outside the purview of their relationship with student-athletes (and instead lies with the Financial Aid office), thus the compensation argument is moot.
Takeaway #2: Dartmouth says they do not have sufficient control over players.
Dartmouth asserts that the central common law theory of employment, which requires employers to exert significant and ‘sufficient’ control over employees, is not applicable in this case. The University supports this claim by citing testimony indicating instances where basketball players, in favor of academic pursuits, have missed practices without facing penalties: “The Employer points to testimony that basketball players have missed practices in favor of academic pursuits and not been penalized.” Again, the scholarship piece is big here. Dartmouth, like many other universities, cannot strip a scholarship away from a player for an athletic-related issue. The same is true, in general, for other benefits like apparel, academic services, and meals.
Takeaway #3: How the NLRB categories revenues/expenses of a the sport program.
Here, the NLRB is trying to gauge the financial dynamics and any potential relationship between the two parties. By scrutinizing the financial aspects, the NLRB can assess the economic relationship between the men’s basketball team and the university, and thereby determine whether the student-athletes should be classified as employees. It’s fairly obvious that there exists an economic interdependence between the men’s basketball players and Dartmouth University. The fact that the NLRB is examining these particular financial considerations, which form the foundation of the employer-employee relationship, suggests that their rationale could be applicable to other sports programs nationwide.
Takeaway #4: Dartmouth Men’s Basketball players assert that they receive compensation for their actions, establishing themselves as employees.
Outside of the conventionally-cited compensation categories (room and board, equipment, apparel, tickets, and access to nutrition and medical professionals) Dartmouth players link early read as a major form of compensation – even greater than the impact of scholarships. Particularly at an educational institution with the academic prestige of Dartmouth, being able have a sense of your admission-worthiness during the recruitment process is meaningful, if not novel, form of compensation. The petitioners cite current men’s basketball player Cade Haskins’ experience as evidence: “[Players] like Haskins choose a special admission process to attend an Ivy League school and unconditional aid based on their financial situation over seeking an athletic scholarship at another university.” With a mere 6% acceptance rate, an early read holds significant non-quantifiable value for the university. Again, it’s important to note that Dartmouth, along with all other Ivies, does not provide athletic scholarships – merely scholarships based on financial needs.
Takeaway #5: NLRB’s conclude “players are employees”
The NLRB states clearly that men’s basketball players are employees of Dartmouth University for the following reason:
- Men’s basketball players represent Dartmouth.
- Men’s basketball players provide a benefit to Dartmouth University.
- Dartmouth restricts/controls players’ activities in a significant way that differs from how the University controls the actions of other student body members.
- Profitability (i.e. being a revenue generator) has no bearing on employee status.
- Forms of compensation include early reads, tickets, apparel, meals, as well as academic and medical services.
- There exists an economic relationship between the Men’s basketball players and Dartmouth University.
Takeaway #6: My Conclusion
I generally support unionization effort and am pleased that another group is getting that opportunity. The Dartmouth Men’s Basketball players petitioning for their employees status, and winning the ability to bargain for their well-earned benefits is commendable. So all in all, I see this as a positive decision.
However, one argument made by the petitioners that I found incredibly flimsy was that early read is a form of compensation. It is more appropriate to categorizes early read as an intangible benefit, and should not be regarded as a form of compensation. There’s no exchange of money (like in scholarships) nor is there an exchange of physical goods/services (like in apparel, meals, and academic counseling). Moreover, early read, be it in the form of a formal process or an informal conversation, is ubiquitous across college athletics. This level of ubiquity warrants its inclusion as a standard component in the admissions process for all students.
While that specific argument may not have been convincing to me, on the whole, the history and relationship dynamic between student-athlete and university had merit enough for the NLRB to rule the student-athletes are employees. And the forthcoming legal and legislative chain reaction will have monumental ramifications in college athletics. The NLRB articulates that “[the] players’ compensation is of a non-traditional form because NCAA regulations have historically prohibited a traditional form of compensation.” Which to me gestures to an argument that the NCAA has, since its (enforcement) inception, wrongly restricted student-athletes from receiving traditional forms of compensations.
It’s uncertain to know how this ruling will ripple across college sports and what subsequent actions might follow. Potentially obvious, this will likely have a huge impact on how college athletics departments are organized, its’ relation to a university, Name, Image, and Likeness, revenue sharing between conferences, schools, and players, and so on. In exploring this new college sports framework, I find myself interested by numerous off-shooting aspects. Similar to the way in which the shaping of the delineation between independent contractors and employees occurs. What does a contracted student-athlete look like? How long will the term lengths be? Will universities see student-athletes as contractors while the student-athletes see themselves as employees? This can and will go in so many ways!
And finally… While union membership is regrettably falling across the country, we should rejoice that a new (smaller) front could be opening up.
Sources & Disclaimer
Decision and Direction of Election – Trustees of Dartmouth
The article was created with assistance from ChatGPT 3.5.