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The 15 players on the Dartmouth College men’s basketball team have already made history by becoming the first unionized college athletes in American history.
Now they’re trying to make sure their employer doesn’t rewrite the history books.
Last Thursday, the Service Employees International Union, Local 560—the labor organization that represents the players—filed a 54-page response to Dartmouth College’s request for review of NLRB Regional Director Laura Sacks’ Feb. 5 decision. Sacks recognized the players as employees within the meaning of the National Labor Relations Act and ordered a union election.
Through a group of attorneys that includes Jake Krupski and Susan Davis, the union urges the NLRB to deny the request.
Dartmouth requesting a review—tantamount to an appeal—is not surprising since the school contends the players aren’t employees and are instead amateur student-athletes. Sacks found the players perform work for Dartmouth in exchange for compensation and that the school has the right to control that work.
Although Dartmouth and other Ivy League athletes do not receive athletic scholarships, the Big Green players net other types of compensation. Sacks reasoned that per diem payments, meals, room and board, expensive sneakers and priority admissions to the one of the nation’s most selective schools (which also fully pays an admitted student’s need for financial aid) count as compensation.
In its brief, the union emphasizes the NLRB granting Dartmouth’s request, let alone reversing Sacks, is no layup.
Under labor law, the standard of review is high: The board should only grant a request when there “compelling reasons” and either the regional director decided a substantial factual issue that is “clearly erroneous” and such a mistake “prejudicially affects” Dartmouth’s rights or a “substantial question of law or policy is raised” because the regional director’s decision departs from NLRB precedent.
Dartmouth, in other words, has to clear two bars to win at the NLRB. The school must convince the board to grant the request and then side with it.
The five-member board currently has one vacancy. Of the four, three were appointed by Democratic presidents (former MLBPA general counsel David Prouty, Gwynne Wilcox and chair Lauren McFerran), while Marvin Kaplan was appointed by President Donald Trump. Dartmouth needs an affirmative vote (4-0 or 3-1) for the request to move forward. Last month, the board ruled against Dartmouth, 3-1, on whether to stay the union election. Kaplan dissented and described Sacks’ decision as “unprecedented.” He also implicitly questioned the classification of college athletes who do not receive athletic scholarships. Perhaps tellingly the other three didn’t join Kaplan, which might signal their views are more aligned with the union.
The board’s decision on Dartmouth’s request could have a profound effect on how quickly the legal controversy plays out. If the board grants the request, many months will likely pass before the board rules on whether the players are employees. In 2014-15, the board took 16 months to decide whether Northwestern University football players were employees. A similar timeline here would mean the board doesn’t rule until the summer of 2025.
Of course, a presidential election will be held between now and next summer. If President Joe Biden is re-elected, NLRB general counsel Jennifer Abruzzo—a strong advocate for college athletes as employees—would have a good chance of being retained. Alternatively, if Trump wins, he will likely replace Abruzzo, a Democrat, with someone whose views on college athletes might differ. The general counsel plays a key role in advising the board.
If the board declines Dartmouth’s request to review, the school would likely then immediately pursue federal court review—kicking off a timeline that could eventually land in the U.S. Supreme Court. A denial would accelerate the timeline by perhaps a year or more since it would remove the board’s review. Alternatively, if the board grants the review, many months will likely pass before a decision, which could then be challenged in federal court.
Much like Dartmouth’s arguments in its brief to the board, the union’s arguments in its brief cover familiar terrain. The union’s central argument is the recognition of the basketball players as employees, while historical in a college sports sense, is an obvious outcome in the U.S. labor market and reflects a correct application of labor law.
The union stresses the NLRA’s overarching purpose is to promote collective bargaining and broadly construe the definition of employee, including when students engage in work for their university. While the union concedes the board hasn’t “decided the precise issue of the employee status of college athletes,” it insists there is “ample” precedent regarding who counts as an employee. The union also repeatedly refers to Justice Brett Kavanaugh’s concurring opinion in NCAA v. Alston, where Kavanaugh critiqued the lack of “meaningful ability’ for college athletes to negotiate “compensation rules.”
One new area covered by the union is Title IX, which Dartmouth now argues is a reason to reject the classification of players as employees. The union contends because Dartmouth failed to raise Title IX concerns before Sacks reached her decision, the school waived the chance to do so. Even if the board does consider them, the union asserts, Title IX neither requires “equivalence of funding between men’s and women’s sports” nor “identical benefits, opportunities or treatments.” If Title IX requires Dartmouth to pay players on both the men’s and women’s basketball teams, the union asserts that would not “extinguish” the men’s players’ rights to be paid under labor law.
