Credit: Courtesy Dartmouth Athletics
It has been a tumultuous era in college athletics with the advent of student-athlete NIL rights, relaxed transferring rules, and dramatic conference realignment among top universities. Adding to this chaos, student-athlete labor rights have once again taken center stage with the announcement that the Dartmouth University Men’s Basketball team took the unprecedented step of voting 13–2 to join the Service Employees International Union (SEIU) in early March.
Leading to the historic vote was the decision of the National Labor Relations Board’s (hereafter “NLRB”) Regional Director, Laura Sacks, that the players were in fact employees of the university. In reaching that conclusion, Sacks noted the extensive control that Dartmouth maintains over its players who perform work in exchange for compensation. The decision, which included an order to conduct the vote, was met with direct rebuke by Dartmouth as a university spokeswoman called the employee classification “as unprecedented as it is inaccurate.”
While the decision is under review as requested by the university, the practical consequence of the vote will move forward, with the players joining the SEIU Local 560 (which includes dining hall workers at the university), and the college athletics universe keeping close watch.
While Dartmouth Men’s Basketball was the first NCAA team to unionize, the concept is not novel in college athletics. A similar attempt was made in 2014 by the Northwestern Football Team, where players sought recognition as employees under the National Labor Relations Act (hereafter “NLRA”). The NLRA provides certain employees protections, such as the rights to unionize and collectively bargain. The NLRB determined that players on scholarship were eligible for unionization. The distinction between scholarship players and walk-on was made because the NLRB decided that without the scholarship, walk-ons were not being paid and therefore not employees. However, before the scholarship players could vote to unionize, Northwestern quickly challenged the NLRB’s decision. Subsequently, a NLRB judge “dismissed the players’ petition and declined to rule on whether college athletes on scholarship qualified as statutory employees under the National Labor Relations Act.” Since the judge determined that the football players were not employees under the statute, they no longer had the right to unionize.
Ten years later, the Northwestern decision is in direct contrast with the recent decision by the NLRB to certify the Dartmouth Men’s Basketball union, meaning that players do qualify as employees under the NLRA. This change of opinion seems to naturally follow from the changes to the landscape of the NCAA in that period. Many new opportunities are available to college players now that we have entered the NIL era. However, the recognition of college athletes as employees creates the issue of who is the employer. University of Southern California athletes who have also sought unionization claim that “the school, Pac-12, and NCAA jointly employ” the student athletes and “share bargaining obligations.” Who is considered the employer is important because it determines what union and collective bargaining efforts will form. If the NCAA and the conference are joint employers, NCAA-wide or conference-wide unions may be the best route for collective bargaining. On the other hand, if the conference and NCAA are not considered joint employers, different unions could form in the respective NLRB jurisdictions. However, this could create differences between the more employee friendly jurisdiction and others. While the future is uncertain for who will be the employer, it is important to ensure that there is a uniform system, so some NCAA schools don’t offer advantages to student athletes which other schools cannot.
There have been drastic changes to the world of collegiate sports since the NCAA’s decision to abandon their longstanding business model prohibiting college athletes from being paid. With Dartmouth University’s Men’s Basketball athletes making the unprecedented decision to unionize and the NLRB recognizing their status as university employees, the only certainty is that the future of college sports will look nothing like the past.
*The views expressed in this article do not represent the views of Santa Clara University.