Dartmouth Men’s Basketball Makes Employment Case at NLRB
The Dartmouth men’s basketball team, represented by attorney John Krupski of the Service Employees International Union, Local 560 of Concord, N.H, made the case that they’re employees during a National Labor Relations Board pre-election hearing on Thursday.
Presided over by NLRB hearing officer Eric Duryea, the hearing lasted all day and is the first in what will likely be several days of proceedings. The hearings center on whether the players are employees under the National Labor Relations Act. Laura Sacks, director of the NLRB’s regional office in Boston, Mass., will decide that question, the answer for which will likely be appealed by the losing side to the NLRB in Washington, D.C., and potentially in federal courts. It could take years to play out.
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Attorneys Joe McConnell and Ryan Jaziri argued for Dartmouth, which insists the players are student-athletes and not employees.
On behalf of the players, Christopher Peck, the president of SEIU Local 560 and a master painter who works at Dartmouth, testified. He mentioned he recently organized visitor service guides at a museum owned by Dartmouth. Peck explained the kinds of activities a union can take on behalf of university employees. He gave an example involving the union objecting to the firing of a Dartmouth employee who was arrested for DUI. The union objected because Dartmouth allegedly wasn’t consistent in determining whether an employee gets fired for that type of offense. Under labor law, the need for consistency is sometimes called “the law of the shop.” It reflects the idea that management must trust union members equally. The analog to basketball is that should a player on the team face discipline, he would be treated as other players.
McConnell then delivered a brief opening statement on behalf of Dartmouth. He argued the regional director should dismiss the players’ petition because the players are not employees, are not receiving athletic scholarships and play on a team that loses money for the school. Further, the rules are set up so that they are students first—with accompanying class attendance requirements—before they are athletes.
McConnell also cited the NLRB declining to assert jurisdiction in a petition brought by Northwestern football players in 2015 as precedent for the NLRB here. He further maintained that while Dartmouth provides players with various benefits unique to being an athlete (such as equipment, apparel, tickets to games, footwear, nutritionist, etc.), those benefits do not count as compensation under employment law.
Dartmouth’s first witness was Taurian Houston, the college’s executive associate athletics director. He works directly with the men’s basketball team and other Dartmouth teams. Houston testified that the players do not receive compensation for basketball, are not issued W-2s or I-9s for any employment verification, do not receive special housing, and aren’t awarded paid time off or vacation time. Houston explained that in the Ivy League, to be a member of an athletic program is an “additive” to one’s education.
Houston also noted that Dartmouth can recruit a basketball player, provide him need-based financial aid, and then, for one of many reasons, dismiss the player from the team after he enrolls. If the student remains enrolled at Dartmouth as a student, he’ll continue to receive financial aid. That point was designed to show the aid is based on being a student, not a player.
Houston also stressed that athletes at Dartmouth are repeatedly told they must prioritize their education and class attendance, including when there are scheduling conflicts with the team. He further said that the athletic department “has no say over admissions,” decisions for which are made by the admissions office, nor does the athletic department have any say over financial aid, and that aid itself has nothing to do with athletic talent.
Houston then discussed data showing that the Dartmouth men’s basketball team has lost hundreds of thousands of dollars per year over the last five years, a point that suggests the team is not part of any profit-driven business model. He also revealed that none of the men’s basketball players has an NIL deal. Although the absence of an NIL deal doesn’t mean the players aren’t or can’t be Dartmouth employees—NIL is paid by third parties—Houston’s testimony painted a picture of the players as more amateur than one might presume of big-time sports programs.
But on cross examination, Krupski challenged Houston on several points. Krupski mentioned how the school uses the team and athletics to fundraise, including a recent $50 million that will improve the gym used by the players. Krupski’s point highlights how even if the team technically “loses” money, the team is used to attract sizable donations, among other purposes that advantage the school’s finances, marketing and reputation.
Raising the core of Johnson v. NCAA, Krupski also wondered why the student manager of the Dartmouth men’s team is paid as an employee, but the players are not paid, when they’re all students on the same team, and they’re all working for the team. Keep in mind, there’s no athletic scholarship piece here, because it’s the Ivy League.
Krupski also alluded to a circular logic theme advanced by Justice Brett Kavanaugh in NCAA v. Alston, when Krupski questioned Houston on how colleges, through their membership in the NCAA, decide the players are amateurs, and then tell them you can’t pay them because they’re amateurs.
Late in the hearing, Dartmouth professor Douglas Van Citters, the school’s faculty athletics representative, testified. He raised similar points as Houston in describing the players as students who play a sport rather than employees.
