In an exceptional development that could dramatically change collegiate sports in the United States, the Regional Director for Region 1 of the National Labor Relations Board (NLRB) recognized the fifteen players of the Dartmouth College men’s varsity basketball team as employees with a right to unionize under the National Labor Relations Act (NLRA), in a decision issued on February 5, 2024. As a result, the players are eligible to vote on whether they want to be represented by the Service Employees International Union, Local 560 for collective bargaining purposes. If a majority of the voting players vote in favor of the union, they will create the first-ever union of NCAA athletes.

The Dartmouth College decision signifies a shift by the NLRB. In 2015, the NLRB declined to exercise jurisdiction over a similar bid to unionize by Northwestern’s football team, thereby declining that opportunity to recognize student athletes as employees at that time. The opportunity was seized in the Dartmouth College decision, however, as the Regional Director distinguished the Northwestern decision – perhaps most notably, based on the fact that Dartmouth College competed in the Ivy League Conference, exclusively with other private schools that were subject to the NLRB’s jurisdiction, where Northwestern competed in the Big Ten Conference, in which every other school in the conference was a state-run institution that was not subject to the NLRB’s jurisdiction.

Key to the Dartmouth College decision, the Regional Director concluded that the “basketball players are employees” given that “Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform work in exchange for compensation.” Further, the Dartmouth College decision relied upon the level of control and supervision over the athletes, including scheduling for games, practices, and other team-related activities, making travel and eating arrangements, managing player safety, and even scheduling player haircuts. 

Interestingly, the NLRB was not deterred by the fact that Dartmouth does not provide athletic scholarships, reasoning that the players received other forms of compensation, including:

• “early read” for admission;
• “equipment and apparel valued in excess of $1,000 per player per year”;
• tickets to games, lodging, and meals; and
• “fringe benefits” including academic support, career development, strength and conditioning training, sports medicine, and integrative health and wellness.

Also notably, and perhaps creating a potentially slippery slope in similar future cases, the NLRB suggested that “lifelong benefits that accrue to an alumnus of an Ivy League institution” also factored into its determination that the athletes received compensation for their services as players.

The NLRB also considered external factors beyond the direct relationship between the institution and the athletes. For example, the NLRB discussed the notoriety that accompanied playing Division I and Ivy League basketball on television, and that “major media outlets. . . pay for the right to broadcast and distribute video” of the men’s basketball games.  Additionally, the NLRB cited the fact that Dartmouth’s “Athletic Department has its own business office, fundraising department, marketing department and brand management department,” suggesting that the business, marketing, and revenue-generating operations within a higher education institution was not lost in the NLRB’s decision.

Looking forward, the Dartmouth College decision is the latest of several recent, significant developments in the world of collegiate athletics and higher education generally. At a minimum, the case demonstrates a continuing willingness among college students to seek unionization while concurrently matriculating at, and providing services to, their college or university. This is demonstrated in another case pending before the NLRB’s Los Angeles office, against the University of Southern California, the PAC-12 Conference, and the NCAA, concerning the employment status of men’s football and basketball teams and the women’s basketball team. This also has been demonstrated by numerous recent unionization efforts by graduate students and teaching assistants across the country.

The Dartmouth College decision also may signal another step towards “professionalizing” collegiate athletics, particularly when viewed against the backdrop of other major developments like the rising prominence of student athletes’ access to name, image, and likeness (NIL) arrangements, the continuing evolution and realignment of college athletics conferences, and the increasing scope and value of media rights deals to broadcast college sports and events.

Indeed, the Dartmouth College decision has the very real potential of dawning a new era in college athletics. The introduction of collective bargaining into the college sports world undoubtedly presents numerous pressing questions that could arise in the future. To offer just a few examples of such questions:

• What differences will emerge between athletics teams at private and public institutions given the difference in applicability of the NLRA to private institutions but not public/state institutions?
• Where will the line be drawn with respect to what terms and conditions of the athlete’s experience will be subject to bargaining obligations under the NLRA – i.e., is there a point at which the athlete is purely a “student,” and not an “employee” under the NLRA?
• How will collective bargaining impact players’ individual abilities and rights to enter NIL agreement that are, by nature, tied to their individual status and performance on the team?
• How will unionization of college athletics teams impact recruiting of athletes? Will incoming athletes want to join teams that are unionized and become bound by existing CBAs?
• How will unionization of college athletics teams impact recruiting of coaches and other non-student professionals? Will coaches be willing to join, or deterred from joining, programs where collective bargaining is required and they will be bound by CBAs negotiated prior to their arrival?
• Are universities and colleges, conferences, and the NCAA prepared to manage strikes and other labor stoppages and disputes?
• Will institutions prefer to bargain with unions as individual employers or as multi-employer groups? How might that work if not all of the peer schools within a conference have unions?
• Will collective bargaining have a material impact on conference restructuring and transitioning? What bargaining duties might exist with respect to the decisions and the effects relating to transitioning between conferences?
• Will this expansion of the definition of “employee” under the NLRA lead to new efforts in the world of higher education by other student groups to seek employee status and efforts to unionize?

There are many other questions, for certain. And none not be answered immediately. Nevertheless, the search for answers to these questions ensures that the higher education community will be watching the scheduled union election by the Dartmouth College men’s basketball team closely, along with any objections and/or appeals that the college might pursue with respect to the Dartmouth College decision.