Another Steppingstone for Student-Athlete Employment Status

Dartmouth basketball players joined together and informed Service Employees International Union (SEIU), Local 560 of Concord, N.H. that they wanted to unionize. This is the same process that Dartmouth library workers, graduate students, visitor center employers and dining service workers all performed to successfully unionize. The SEIU, also known as the Dartmouth College Employees’ Union, then filed a petition to the NLRB regional office in Boston which is directed by Laura Sacks. It is now up to that regional office and Sacks to perform an investigation and determine if Dartmouth basketball players meet the requirements under the NLRA to form a union.

How a Union is Formed

Forming a union is a process involving many hurdles. First, employees must come together to request to be unionized to a union organization (i.e., SEIU). The employees could request for their employer (i.e., Dartmouth College) to voluntarily recognize them as a union so they can begin collectively bargaining. If the employer chooses not to recognize them as a union, or the employees do not seek employer approval, the union organization (i.e., SEIU) will file a petition with the NLRB in that region. If the regional director of the NLRB (i.e., Laura Sacks) finds that the requirements to form a union have been met (i.e., the filing party members are employees of their employer; the employer is a private organization; and at least 30% of the employees support the petition) then the regional director will allow the employees to vote on becoming a union. If the employees get 50% +1 votes, they are a valid union. The SEIU President Mary Kay Henry did say, “With their unanimous decision to join together in a union...” showing that a vote to validate union status of the basketball team is likely.

Obviously, the big problem here is that no student-athletes have been deemed employees under federal law, so the question becomes whether Laura Sacks will find that they meet the definition of an employee under the National Labor Relations Act (NLRA). Sacks could use the 2015 NLRB holding in the Northwestern Football case to find that the NLRB does not have jurisdiction to consider whether the college athletes are employees under the NLRA. Sacks could also use General Counsel of the NLRB Jennifer Abruzzo’s memo issued in 2021, saying college athletes at private universities are NLRA-protected employees because they perform services for their colleges and the universities display a level of control over the athletes that is similar to an employment relationship. It should be noted that in the 2015 Northwestern Football unionization attempt, the NLRB regional director in that case did find that they were employees under the NLRA. It was on review by the NLRB (who oversees all the regional offices) where it was issued that the NLRB did not have the jurisdiction needed to determine if student-athletes were employees of their university.

How Could This Play Out

1. (1) Sacks could find that there is no NLRB jurisdiction to determine if they are employees and rule that they cannot unionize.

2. (2) Sacks could find there is NLRB jurisdiction, and that Dartmouth is an employer of the basketball players and allow them to vote to attempt to unionize. The matter would then likely be reviewed by the NLRB, like the 2015 Northwestern Football case. Which I remind you... was decided before the 2021 memo issued by General Counsel Jennifer Abruzzo.

3. (3) Dartmouth could voluntarily recognize the basketball players as employees and allow them to unionize. Dartmouth College stated, “We are carefully considering this petition with the aim of responding promptly yet thoughtfully in accordance with Dartmouth’s educational mission and priorities.” Not demonstrating which avenue, they will take.

4. (4) Sacks or the NLRB could wait for the determination from the NLRB complaint against USC, the Pac-12, and the NCAA (“the defendants”) that an NLRB administrative law judge is deciding. The administrative law judge is set to hear the case in November 2023. The main issue of that complaint is whether the defendants in that case misclassified USC student athletes as not being employees.

Items To Be Noted

Dartmouth College is a private Ivy-League school. Being a private “company”, the NLRB has jurisdiction over them. However, the NLRB does not have jurisdiction over public or state-run college (without a joint-employer theory).

Also, the Ivy-League does not allow student athletes to have obtain athletic scholarships. This would put this decision into a separate category when talking about most other colleges if they attempted to do the same thing.

Lastly, other students at Dartmouth have joined unions. Student workers in the dining hall, library, visitor center, and graduate students are all a part of a union. This tends to resemble the argument made in other student-athlete employment cases; “how can other students be declared employees of the university when they supply services to the university in return for compensation and athletes cannot?”

The Big Takeaway

For the first time since Northwestern’s 2014 attempt and NLRB General Counsel Abruzzo’s 2021 memo, student-athletes are attempting to unionize. This makes for the fourth legal dispute where student-athlete employment status is at issue.2 With each dispute and the noise that comes with it, makes it more and more likely for governing bodies to have to address the issue. These governing bodies consist of conferences, the NCAA, the NLRB, state and federal courts, state governments, and the federal government. Regardless of if the Dartmouth basketball team is successful in this unionization attempt, they have created another steppingstone for student- athletes to gain employment status. It appears that we are just getting closer and closer to the inevitable.

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2 The other three are: (1) Third Circuit Johnson v. NCAA case; (2) NLRB complaint against USC, Pac-12, and NCAA; and (3) a recent complaint filed by the College Basketball Players Association against Northwestern (the NLRB has yet to determine if it will validate the complaint).

Logan Hughes is a third-year law student at Ohio Northern University. You can follow him on Twitter @loganchughes23 and on LinkedIn (Logan Hughes)