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National Labor Relations Board delivers potential crippling blow to NCAA with landmark Dartmouth ruling

NCAA, college football,
Kirby Lee-USA TODAY Sports

The National Labor Relations Board has ruled in favor of the men’s college basketball team at Dartmouth College, classifying them as employees of the university in a decision that could have massive ramifications for the NCAA and the future of college sports.

In September 2023, the Dartmouth College men’s basketball team filed a petition with the NLRB by the Service Employees International Union, seeking representation and to be classified as employees of Dartmouth. With the SEIU listed as the petitioner in the motion, the men’s basketball team became the latest college athletes to attempt to unionize and challenge the National Collegiate Athletics Association’s classification of student-athletes.

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Nearly nine years after efforts by Northwestern football players to unionize failed, the NRLB has now issued a ruling that could have massive ramifications for the NCAA.

As first reported by Amanda Christovi of Front Office Sports, the NLRB ruled on Monday that the men’s basketball players who filed the petition are employees of the school and will thus be allowed to unionize.

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The NLRB released a statement explaining the ruling.

“Dartmouth takes the position the petitioned-for basketball players are not employees within the meaning of the Act and submits that the petition should be dismissed. In addition, Dartmouth takes the position that the Board should decline to assert jurisdiction over the basketball players so as not to create instability in labor relations. As set forth below, I find that because 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. Additionally, I find that asserting jurisdiction would not create instability in labor relations. Accordingly, I shall direct an election in the petitioned-for unit.”

National Labor Relations Board ruling on Dartmouth men’s basketball players being classified as employees

In a follow-up, Christovich reported that Dartmouth and the NCAA are expected to appeal the ruling. Officials from the NCAA and Ivy League did not respond to requests for comment.

What does the Dartmouth ruling mean for the NCAA’s future?

NCAA Basketball: NCAA Tournament First Round Columbus Practice
Rick Osentoski-USA TODAY Sports

The NCAA has already experienced a myriad of legal setbacks to its amateurism model in recent years. In August 2021, the United States Supreme Court unanimously ruled that payments to student-athletes were not impermissible.

As part of that ruling, Justice Brett Kavanaugh wrote that the NCAA”s banning of compensation for student-athletes raised “serious questions under the antitrust laws” and called into question the very amateurism model that the NCAA has relied upon for decades.

“The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that “customers prefer” to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a “love of the law.” Hospitals cannot agree to cap nurses’ income in order to create a “purer” form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a “tradition” of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a “spirit of amateurism” in Hollywood. Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work”

Supreme Court Justice Brett Kavanaugh in his concurring opiniong on a unanimous 9-0 ruling in favor of student-athletes being eligible for compensation

College athletes also picked up another major win in court last year. In December 2023, U.S. District Judge John Preston Bailey of northern West Virginia ruled against the NCAA’s transfer rules barring an athlete’s ability to play immediately after transferring for a second time.

The ruling came after a lawsuit filed by West Virginia and six other states, alleging the NCAA’s rules violated federal antitrust law.

Prior to that ruling, U.S. District Judge Claudia Wilken sided with college athletes in a ruling that opened the door for three classes of former student-athletes to seek monetary damages worth more than $1.3 billion in claims. In total, the classes represented more than 184,000 athletes who played men’s football and basketball, women’s basketball along with additional sports for Division 1 programs.

As noted by Chris Vannini of The Athletic, the NLRB ruling only applies to the private sector and the primary focus of this is on Ivy League schools. Because the Ivy League doesn’t award scholarships to student-athletes, those athletes should be allowed to unionize.

In the ruling, the NLRB regional director also disagreed with the previous notion from conference and school officials that college sports are considered an extracurricular activity that should not be eligible for compensation nor should athletes be classified as employees.

“The Employer’s argument that under this defin”The Employer’s argument that under this definition of employee, any student who participates in any extracurricular activity and receives need based financial aid could be deemed an employee under the Act is inapposite. The record does not suggest that other extracurricular activities dominate students’ schedules to the extent that students are encouraged to take classes at particular times and then miss those dutifully scheduled classes due to the activity’s travel requirements. The record also does not suggest that the hypothetical student journalists, actors, and musicians described by the Employer in its brief are recruited and admitted through a special process because of their investigatory and artistic skills. Nor does the record indicate that these students’ journalistic and artistic endeavors require Dartmouth to employ multiple specialized individuals to monitor funds and brand management.”

NLRB director in the ruling against Dartmouth

Regarding the previous ruling against Northwestern’s football players, the NLRB said that because Northwestern was a private university in a Big Ten Conference made up of state colleges, granting the employee classification and allowing Northwestern’s football players to unionize 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.”

For the National Collegiate Athletics Association, the latest setback means college athletes are now one significant step closer to taking down the amateurism model that helped the NCAA make hundreds of millions of dollars of revenue, most recently earning $1.3 billion in 2023.

Meanwhile, Congress has taken an active interest in an ongoing case at the 3rd U.S. Circuit Court of Appeals, which focuses on recognizing college athletes as employees. The NCAA has reportedly been lobbying Congress for months with the hopes of it leading to a bill that would prohibit college athletes from being declared employees. However, the NLRB’s ruling and the previous decision by the Supreme Court leave that in doubt. Amid growing uncertainty regarding the stability of college sports, Monday’s decision could be one of the biggest dominoes to fall in years.

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