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Labor & Employment News Alert

College Basketball Players are “Employees,” says NLRB Regional Director

February 6, 2024

By: Benjamin J. Wilson

On February 5, 2024, a regional director for the National Labor Relations Board (NLRB) concluded that Dartmouth College’s men’s basketball players are “employees,” and that, as employees, they are eligible to unionize. The decision has seismic implications and further clouds the future of the NCAA’s “amateur” status.

In her decision, Regional Director Laura Sacks stated: “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.” Consequently, the players may hold a union election, Sacks ruled.

No date has yet been set for an election, which will likely be set in the coming weeks. This is not the end of the process, though. In 2015, a regional director ruled similarly in favor of Northwestern University’s football team being able to unionize, but the NLRB later dismissed the petition. Dartmouth has not yet indicated that it will appeal and will have 10 business days to do so. In Northwestern’s case, an election was held but the votes were not counted, and the case was dismissed on jurisdictional grounds regarding various state laws and state-run institutions.

A point of distinction between Northwestern and Dartmouth, however, is the fact that the Ivy League, of which Dartmouth is a member, is made up entirely of private institutions, whereas Northwestern—despite being a private institution itself—was a member of the Big Ten Conference, made up of the aforementioned public institutions. Sacks noted this in her order, stating “the Board’s concerns about potentially conflicting state labor laws do not apply.”

This decision only marks the latest development in the world of labor law and sports. In May 2023, the NLRB issued a complaint against the NCAA, the PAC-12 Conference, and the University of Southern California, alleging that the three entities were joint employers of the athletes. That trial is presently pending before an administrative law judge who will issue a decision sometime after testimony concludes in February.

The decision can be found in its entirety here.

The collision of collegiate sports and labor law will be one to watch in the coming months and years, and it seems the first seismic waves are beginning to reverberate through the arena. If you have questions about this latest development or labor law in general, please contact a member of the Jackson Kelly Labor and Employment Team.


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