The rights of college athletes take center stage in Trustees of Dartmouth

This February, the National Labor Relations Board (NLRB) Boston Regional Director sent ripples through the collegiate sports world when she held that Dartmouth’s basketball players were “employees” within the meaning of the National Labor Relations Act (NLRA), thus entitling the players to petition the NLRB to be represented by a union. In so doing, the Regional Director tapped into two developments which have been unfolding during the past decade or so.

The first one is the case law holding that university students may be regarded as employees even when their work, like that of teaching and research assistants, was designed to further their educational interests. (Columbia University 364 NLRB 1080 (2016).) A second development consisted of judicial recognition that activities of college athletes that generate revenues for a university are “commerce” within the meaning of antitrust law. In one of the leading cases (O’Bannon v. NCAA 802 F.3d 1049 (9th Cir. 2015)) a star player discovered that his image was being used in video games without his knowledge, consultation, or approval and that he did not share in the revenue gains from the videos in question. With California leading the way, the O’Bannon case induced legislatures to enact so-called name, image and likeness (NIL) statutes allowing college players to receive compensation for appearances, advertisements, and the like.

Moreover, in 2021 a unanimous Supreme Court held that the NCAA’s rules prohibiting an award of “educational” benefits to players violated antitrust law. (NCAA v. Alston 594 US 69 (2021)), Justice Brett Kavanaugh rendered a biting condemnation of the previously held view that college relationships with players could be deemed to be different from other employment relationships. Multi-million-dollar coaching salaries and an army of support staff, i.e., well-paid university administrators, made the inequities of the player-college relationship all the more dramatic!

These decisions were the backdrop for the Dartmouth ruling (Trustees of Dartmouth College Case 01-RC-325633 Feb. 5, 2024), which was carefully and soundly reasoned by the Boston Regional Director. She properly emphasized the two factors that are the prerequisite for a finding that an individual is an employee: control exercised over the player for numerous hours and compensation – in the case of Dartmouth consisting of clothing, equipment, tickets (Dartmouth and other Ivy League schools prohibit athletic scholarships), and other items, coupled with a special early application for admission reviews, she reasoned, meant that the players were employees under extant labor law.

The Dartmouth ruling will be appealed to the NLRB in Washington and the federal courts, and perhaps the Supreme Court itself. The fact that the Ivy League consists of genuine institutions of higher learning rather than the football and basketball “factories” of big revenue universities, like those of the Southeastern Conference, for instance, may make the position of Dartmouth more appealing to the judiciary, even though their basketball program was not as impoverished as Dartmouth claimed.

And other roadblocks for employment status remain. In the first place, colleges will argue that since professional leagues are organized on a league-wide multi-employer basis, the competition between all universities in the Ivy League (or other conferences) makes a league-wide appropriate unit the only one that should be NLRB ordered. The fact that virtually all Big Ten universities were in the public sector and thus beyond the NLRB’s jurisdiction convinced the Board that a representation petition filed by Northwestern University football players would be inconsistent with labor-management stability (the Board thus dismissed the petition), and will be relied upon by universities as well (Northwestern University 362 NLRB 1350 (2015)). But in the Ivy League, all the universities are private, and thus dismissal of the Dartmouth petition would not be warranted for the reasons put forward in Northwestern University. In any event, what was ignored in Northwestern University is that the Board has long held that collective bargaining can be ordered even where the bargaining table issues are limited because of the dominant involvement of a public employer over which jurisdiction cannot be asserted. The key consideration is whether employees think that there is something to bargain about and whether collective bargaining can function. (Management Training Corp 317 NLRB 1355 (1995).)

In any event, the NLRB is prohibited by the Taft Hartley amendments from ordering a league-wide unit unless all employers consent. It is unlikely that the universities, like other employers and thus far deeply opposed to collective bargaining with the players, would do so.

There are other problems as well. Title IX’s prohibition of gender discrimination in sports and the fact that women’s basketball is the only big revenue competition outside of men’s sports means that some ways must be found to either provide new benefits for women through university initiatives or to bring women and men’s sports together at the bargaining table in one broad unit. This problem has been dramatized by the new “collectives” supposedly separate from the universities, consisting of “boosters.” They have emerged in response to NIL legislation and the Alston holding which now provides for college player compensation, and the lavish salaries disproportionally awarded to the male players in the revenue-producing behemoths of men’s basketball and football. The collectives are now the Wild West, and NCAA attempts to limit them to exclude offers to new college recruits are prohibited under antitrust law due to a sweeping, Feb. 23 federal court ruling (State of Tennessee Commonwealth of Virginia v. NCAA).

What all this means for the future, let alone pending litigation about employment relationships between universities and players remains to be seen. The Supreme Court, so deeply antagonistic to universities in the affirmative action arena and voiding rules prohibiting player compensation in Alston, has been deferential to universities in labor law, most prominently in a 5-4 ruling in NLRB v. Yeshiva University 444 US 627 (1980) where it denied most professors employment status.

The increasingly discredited NCAA will lobby Congress to reverse the new case law. Congress should not. While the more than arguably tawdry “collectives” should be eliminated, and the compensation obligation has been properly thrust upon the universities themselves, the players should be paid like other employees.

Meanwhile, the Regional Director’s ruling in Trustees of Dartmouth is most consistent with our labor law, which promotes collective bargaining even in the university setting where athletes have been profoundly exploited.