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Employment Law Update: National Labor Relations Board (NLRB) Rules College Basketball Players Are Employees

On February 5, 2024, the NLRB ruled that Dartmouth University’s Men’s Basketball team players are employees of the school, within the meaning of the National Labor Relations Act, clearing the way for an election that may result in the first-ever certified labor union for NCAA athletes. This decision is one of the clearest examples of “student-athletes” trending toward becoming “athlete-employees.” If successful in unionizing, the players would be able to negotiate their pay and working conditions as athletes playing, travelling, and generating revenue for Dartmouth.

A key factor in the ruling was the players’ receipt of equipment and apparel, tickets to games, lodging, meals, and other program benefits, as well as an “early read” for admission prior to graduating high school, all of which the NLRB identified as forms of compensation to the players.[1] Though “non-traditional” forms of compensation, these benefits, according to the Board, nevertheless formed sufficient compensation in exchange for students’ services playing basketball for the school. “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,” NLRB Regional Director Laura Sacks wrote.

In recent years, the NLRB has been chipping away at the NCAA’s approach to amateurism in college sports. In a 2021 memo, the NLRB’s General Counsel Jennifer Abruzzo stated the Board’s position that college athletes should be considered employees. The NCAA and its universities insist their athletes are not employees, even lobbying Congress for a federal law that would codify student-athletes as non-employees.

This case is being closely watched by Whiteford’s Labor & Employment and Sports Law practice groups, as the landscape of the NCAA’s amateur athlete model faces intense scrutiny and litigation.