Making Sense of the Dartmouth Decision | Part 1 

It wasn’t cash, an NIL deal, or even an athletic scholarship, but it was compensation according to National Labor Relations Board (NLRB) Region 1 Director, Laura Sacks. By providing its men’s basketball team with apparel, gear, academic services, and other supportive resources, Dartmouth College was providing compensation to the team. Combined with the substantial control that the College also exerted over the players, the NLRB had very little trouble concluding that the players were employees under the National Labor Relations Act (the Act) and could unionize.

But with an election set to take place on March 5, this is likely only the beginning of the rest of this story. In advance of the election, we’ll review where we’ve been, where we are currently, and where we may be headed, as this ruling not only redefines the athlete-institution relationship, but also sets a precedent for future considerations regarding athletes’ rights and collegiate sports governance.

Part 1 of a 3-Part Series

In part 1 of this 3-part series, we will briefly review how we ended up at this decision, because while past isn’t always prologue, the writing has been on the wall for quite some time. In part 2, we’ll explore some of the nuances of the NLRB’s decision, focusing on compensation beyond scholarships and control as a determinant. In part 3, we’ll highlight the implications for collegiate sports and what (we think) might happen once the dust settles.

From Chicago to Boston

In order to understand the significant import of the Dartmouth decision, it’s worth flashing back to 2015, when the NLRB made a pivotal but cautious decision regarding the Northwestern University football team. This 2015 case explored whether college athletes, specifically those on scholarship, could be considered employees with the right to unionize. Although the NLRB ultimately decided not to assert jurisdiction, citing concerns about the potential impact on the structure and stability of college sports, the case ignited a national debate on the employment status of student-athletes. The Northwestern decision underscored the complexity of balancing academic and athletic commitments within the framework of labor law, highlighting the "novel and unique circumstances" surrounding student-athletes.

With a Layover in D.C.

Impactful as the Northwestern decision was, the student-athlete-as-employee debate really picked up steam following the Supreme Court’s 2021 unanimous decision in NCAA v. Alston. By ruling against the National Collegiate Athletic Association’s (NCAA) restrictions on education-related benefits, the Court not only challenged the NCAA's definition of amateurism but also implicitly acknowledged the economic value and contributions of student-athletes to their institutions.

Justice Kavanaugh's concurring opinion was particularly critical of the NCAA's business model, highlighting the potential for further legal scrutiny of NCAA rules that restrict athlete compensation. This decision significantly impacted the landscape, suggesting that the NCAA's longstanding amateurism model was vulnerable to antitrust challenges and opening the door for student-athletes to receive compensation that more accurately reflects their contributions to college sports.

Not long after the Alston decision was handed down, the NLRB’s General Counsel issued a memo indicating a shift in how certain college athletes might be viewed under the Act, signaling an end to the use of the term "student-athlete" in an effort to recognize their rights as employees. This move, clearly building on the momentum of Alston, was aimed at affording college athletes greater protections and paving the way for further challenges to the NCAA's business model.

Enter the Service Employees International Union, Local 560, seeking to “represent a bargaining unit comprised of the approximately fifteen students enrolled at Dartmouth who comprise the men’s varsity basketball team.”

Stay tuned for part 2, where we will take a deeper dive into the key elements of the historical decision and how it could impact your campus.