Dartmouth Men’s Basketball Set to Argue Employee Status With NLRB
On Thursday morning—a month before they are slated to play their season-opener at Duke—Dartmouth men’s basketball players will make what could be their most consequential televised appearance in a video conference before the National Labor Relations Board.
The debate over the Big Green’s union eligibility will get under way in what’s expected to be a multi-day pre-election hearing presided over by a hearing officer from the NLRB’s regional office in Boston. Both sides—the university and the players—will call their witnesses, present materials and make their arguments as to whether the athletes should be considered workers under the National Labor Relations Act.
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Beyond that fundamental—and, for the NCAA, perhaps existential—question, the sides will haggle over the size and make-up of the proposed bargaining unit and when or how a union election should be held.
A word of caution: Thursday’s hearing is just the first step in what could be a multistep, multiyear legal journey for the players and school officials. It could take them through the NLRB in Washington D.C. and into federal courts, perhaps eventually the U.S. Supreme Court.
But all journeys start somewhere.
To that end, expect a series of legal arguments on Thursday that will test the meanings of “employee” and “student” and how they ought to interact.
Through the Service Employees International Union, Local 560 of Concord, N.H., the players will insist Dartmouth has misclassified them as “amateurs” or “student-athletes” since being a student and employee are not mutually exclusive under labor and employment laws.
The players will maintain the NLRB has adopted a broad and inclusive test for determining whether a worker is an employee, and whether the players meet that test. Generally, a person who performs a service for another and is subject to the other’s control falls within the employee moniker.
Expect the players to argue that although Dartmouth, as an Ivy League school, doesn’t pay for athletic scholarships, the school confers players equipment, apparel, tickets to games, footwear, access to nutritionist and medical professionals, room and board, academic support and other benefits not provided to other students. Significantly, these benefits are connected to being on the team and would be lost to players if they quit the team.
Through coaches, the school also dictates players hours, how they are to perform their work and some of their conduct off the court. Players also cede certain name, image and likeness (NIL) rights related to being recorded and photographed as part of their team membership. These requirements are all consistent with players being employees.
The players will likely also maintain they can form a bargaining unit without the involvement of other Dartmouth athletes or other Ivy League athletes—the involvement of whom would no doubt complicate and potentially halt the men’s basketball players’ efforts.
Labor law provides a good deal of discretion for the formation of a bargaining unit, so long those in the unit share similar workplace situations. The players will argue they share the common experience of being on the same basketball team. Other athletes at Dartmouth (and at other Ivy League schools) have separate coaches, seasons that run on different schedules and play sports that have their own unique rules and standards.
The presence of unionized student workers at Dartmouth—people who work in dining services recently unionized and negotiated a $21-per-hour wage—will help the basketball players establish precedent for a Dartmouth student to simultaneously be a Dartmouth employee. The school has a detailed handbook on that topic too, with various rules for student eligibility, hours, breaks and other facets of employment.
The NCAA generally limits “countable athletically related activities” to about 20 hours per week, but the players, as a union, could negotiate different hours—for example, fewer than 20 hours. They might also negotiate different rules for NIL contracts, safety issues and how they can be disciplined.
The players can also point to Supreme Court justices for support. In his concurring opinion in NCAA v. Alston, Justice Brett Kavanaugh said, “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on a theory that their product is defined by not paying their workers a fair market rate.”
Dartmouth will probably lead its arguments by stressing that as a member of the Ivy League, it does not provide athletic scholarships and thus, unlike an employer, does not pay the athletes for playing.
Dartmouth is also poised to frame its basketball program as emblematic of amateurism. The players, the school will argue, are students who play a sport. The school might show data showing these players usually stick around to graduate and go on to careers outside of basketball, including grad school.
Expect Dartmouth to contrast its program to more prominent D-I ones that feature “one and dones” and arguably serve as feeders for NBA teams. Dartmouth will probably also say its basketball program is a money-loser for the school.
Dartmouth will likely also contend that while basketball players might receive financial aid, that aid does not reflect additional compensation for playing basketball and would continue if a player stopped playing for any reason. Along those lines, Dartmouth will insist the players are not employees since their work is not performed in exchange for compensation.
As noted above, the players will contest these arguments. They might stress that Dartmouth has used the basketball team, and other Big Green teams, to solicit and attract donations from alumni and supporters.
The school recently announced a substantial gift from Boston Celtics co-owner Stephen Lewinstein ’63 and his wife, Diana. The school will rename Alumni Gym “the Lewinstein Athletic Center” and plans to add a “centralized athletic training facility” drawing from these new funds. The university said that while it sought $90 million in a campaign for “major investments in Dartmouth Athletics,” the $178 million raised has far surpassed the goal. Dartmouth added that over the last eight years “generous supporters have endowed 21 coaching positions.”
While most universities report losing money on athletics based on revenue and expenses, those losses fail to take into account the value athletics provides universities for purposes of fundraising, admissions and marketing.
Also, although Dartmouth men’s basketball is not among the nation’s elite, the program has produced a handful of NBA players over the years (with others playing pro in Europe and elsewhere) and there is enough consumer interest in Ivy League sports for the conference to negotiate a 10-year contract with ESPN to broadcast games. The Dartmouth men’s basketball program might not seem as professionalized as others that have more fulsome pipelines of NBA players, but it is still professionalized in some ways.
Thursday’s pre-election hearing comes two years after NLRB General Counsel Jennifer Abruzzo issued a field office memo arguing that certain kinds of college athletes are employees under the NLRA and should be afforded its statutory protections. In addition to the Dartmouth players’ union bid, the NLRB is pursuing an unfair labor practice charge on behalf of USC football and basketball players, against the school, Pac-12 conference and NCAA. A hearing for that matter is scheduled before an NLRB administrative law judge next month. Additionally, college athlete advocate Michael Hsu has filed recent ULP charges against Northwestern University and, as of earlier this week, the Ivy League.
