A regional director at National Labor Relations Board ruled on Monday that Dartmouth men’s basketball players are employees of the university and allowed to unionize in a landmark decision that challenges the NCAA’s longstanding amateurism model.
The 26-page ruling by NLRB regional director Laura Sacks was initially reported by Front Office Sports. It cites U.S. labor law in determining that Dartmouth players are permitted to form a union.
“Because Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform that work in exchange for compensation, I find that the petitioned-for basketball players are employees within the meaning of the [National Labor Relations] Act,” Sacks wrote.
Neither Dartmouth University, its basketball players nor the NCAA issued a statement addressing the ruling in its immediate aftermath.
Dartmouth players petitioned to unionize in September
Dartmouth players filed a petition with the NLRB in September seeking the right to unionize and collectively bargain. Doing so would mean that they are employees of the university, not amateur student-athletes as the NCAA maintains.
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Dartmouth University lawyers argued in an ensuing NLRB hearing in October that basketball players aren’t employees because they’re unpaid members of a program that loses money. Attorney Joe McConnell contested that players are instead student-athletes, a classification the NCAA has long used to thwart the payment of players.
“Dartmouth’s paramount commitment is to the academic and personal growth of all students, including students who participate in varsity athletic activities,” McConnell argued. “At Dartmouth, students’ primary objective is learning, and Dartmouth has adopted policies reflecting that students who participate in intercollegiate athletics are students first and athletes second, and that class attendance takes precedence over participation in athletics.”
Sacks: Dartmouth determines when players ‘travel, eat and sleep’
Monday’s ruling determined otherwise. Dartmouth players, like all athletes across the Ivy League, don’t receive athletic scholarships. Sacks determined that they receive compensation in the form of lodging, food and other expenses and that the program treats them as if they are employees.
“Dartmouth determines when the players will practice and play, as well as when they will review film, engage with alumni, or take part in other team-related activities,” Sacks wrote. “When the basketball team participates in away games, Dartmouth determines when and where the players will travel, eat and sleep. Special permission is required for a player to even get a haircut during a trip.
Dartmouth is expected to appeal the ruling that could spell the end of the NCAA’s amateurism model if upheld. The university has 10 days to do so, per FOS. Dartmouth players are free to hold a union election in the meantime.
NCAA’s amateurism model under more fire
The NCAA’s amateurism model is the basis for athletes not getting paid. Direct compensation for NCAA athletes has long been limited to scholarships and expenses. Any direct payment otherwise comes with the threat of ineligibility for the athlete and sanctions for programs and individuals involved.
Amid legal pressure levied by state legislatures across the country, the NCAA approved name image and likeness (NIL) compensation for athletes in 2021. This allows athletes to receive payments from third parties for endorsements, autographs and other opportunities to profit from their own individual brand. The NCAA approved NIL only when its hand was forced by a changing legal landscape. Any direct payment to team members for duties performed as student-athletes is still prohibited.
The NCAA has maintained this stance as it’s developed into a multi-billion dollar industry. NCAA revenue for the 2022-23 fiscal year is estimated a $1.3 billion. This is largely based on media rights and marketing deals tied to the NCAA men’s basketball tournament.
When considering money generated by individual programs consisting mostly of football and men’s basketball teams, that revenue in 2019 totaled $15.8 billion. From a 2019 NCAA revenue report:
“Division I schools reported total athletics revenue of $15.8 billion in 2019: $10.2 billion generated by the athletics department, and $5.6 billion allocated from institution/government supports and student fees.”
That money goes back to universities, facilities, administrators and head coaches who frequently sign multi-million dollar contracts. Outside of scholarships and expenses paid, the athletes who generate that revenue with their play on the field and court don’t see any of that money.
Will the ruling stand?
The NLRB previously blocked Northwestern football players’ efforts to form a union in 2015, overruling a 2014 decision by the board’s director in Chicago to approve one. Like Monday’s, the initial ruling allowing players to unionize was made at the regional level.
The ruling to overturn the decision cited concerns that allowing players to unionize would run the risk of different standards emerging at different programs, leading to competitive imbalance. That decision was made in a different landscape before NIL and with less pressure on the NCAA.
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