College Athlete Unions Under the NLRA

The majority of Dartmouth players voted to unionize, but whether they are allowed to do so remains unclear.

On March 5, 2024, the majority of the Dartmouth men’s basketball team voted to unionize under the National Labor Relations Act (NLRA). As the news reports indicate, this makes them the first college sports team to conduct and win a union election.

But the path to having the union fully sanctioned by the NLRB remains fraught. Based on existing Board law and the particularities of this case, it’s not at all clear that the Dartmouth basketball union will survive a legal challenge.

Northwestern Football Team

The Dartmouth team is not the first to attempt to unionize under the NLRA. Back in 2015, the Northwestern football team tried the same thing, but the NLRB ultimately declined to recognize the players as employees under the NLRA.

The Northwestern case is an interesting one because, in its decision, the NLRB did not determine one way or another whether the Northwestern players were NLRA-covered workers. Instead, it discretionarily declined to assert jurisdiction over the case.

The official reason for declining jurisdiction in that case was that, if the NLRB found that Northwestern football players were employees, it would create chaos in college football.

At the time, Northwestern was the only private university in the Big Ten conference and only 17 of the 125 teams in NCAA Division I football were run out of private universities. The NLRB does not have jurisdiction over public employees and so only players on these 17 teams would be eligible to unionize under the NLRA. This is a problem because all 125 teams are meant to be governed by rules established by a unified sports body, the NCAA, something that would become practically difficult, if not impossible, in a world where some teams could unionize and bargain and other teams could not.

From the decision:

In such a situation, asserting jurisdiction in this case would not promote stability in labor relations. Because most FBS teams are created by state institutions, they may be subject to state labor laws governing public employees. Some states, of course, permit collective bargaining by public employees, but others limit or prohibit such bargaining. At least two states—which, between them, operate three universities that are members of the Big Ten—specify by statute that scholarship athletes at state schools are not employees. Under these circumstances, there is an inherent asymmetry of the labor relations regulatory regimes applicable to individual teams. In other contexts, the Board’s assertion of jurisdiction helps promote uniformity and stability, but in this case, asserting jurisdiction would not have that effect because the Board cannot regulate most FBS teams. Accordingly, asserting jurisdiction would not promote stability in labor relations.

Personally, I do not find this kind of reasoning very compelling. It is the responsibility of private entities to conduct their operations in a way that is consistent with federal law. Federal law should not be contorted to fit with the structure of the NCAA. It should be the other way around.

But this is the reasoning the NLRB went with.

Dartmouth Basketball Team

On February 2, 2024, Region 1 of the NLRB issued a Decision and Direction of Election (DDE) finding that the Dartmouth basketball players were employees under the NLRA and directed that an election be held to determine whether there is majority support among the players to unionize with the Service Employees International Union (SEIU).

In the DDE, Sacks explained that she could direct an election despite the Northwestern decision because the Board specifically indicated in that case that its decision was specific to the Northwestern football team.

Sacks also attempted to distinguish Dartmouth from Northwestern on the grounds that Dartmouth plays in the Ivy League where all the schools are private.

When the Board declined to assert jurisdiction in Northwestern University, it explained that Northwestern was the only private school which competed in the Big Ten Conference and a variety of state labor laws would apply to football teams at state-run institutions. The Board remarked that, in general, cases involving professional sports involve leaguewide bargaining units but stopped short of reaching the matter of whether team-by-team organizing is ever appropriate.

The same conclusion is not warranted here. The Ivy League, unlike the Big Ten Conference, consists only of private universities. Accordingly, the Board’s concerns about potentially conflicting state labor laws do not apply. In N. Am. Soccer League, 236 NLRB 1317 (1978), the Board held that that while the record supported a finding that the league-wide unit was an appropriate unit, single-club units are also appropriate units; stressing “single-location units where a degree of day-to-day autonomy or control is exercised are usually presumptively appropriate no matter what industry is involved…”

This is a clever move, but I don’t think it ultimately works. Dartmouth plays in the Ivy League, not the Big Ten, but it is also subject to the unified governance of the NCAA, just like Northwestern was. Thus, the same kind of “inherent asymmetry” and lack of “uniformity and stability” that the NLRB cautioned about in the Northwestern case is also present in the Dartmouth case.

Awaiting the Board

Right before the Dartmouth election was held, the school submitted a request for extraordinary relief to the NLRB aiming to pause the election until the Board had a chance to weigh in on the merits of the DDE. The Board declined that request, meaning that it will only weigh in on the merits as part of hearing post-election challenges from the school.

So the real question, as far as legal developments go, is what the Board will say when this issue is properly before them. It seems doubtful that they will endorse the idea that there is an Ivy League exception to the general rule that private university sports teams cannot unionize. Although this would be an amusing ruling, it does not really make sense as those schools are governed by the NCAA, not just the Ivy League.

If the Board is going to permit the Dartmouth basketball team to unionize, it will presumably do so by completely reversing what it did in Northwestern, i.e. by establishing that, going forward, it will assert jurisdiction over private university sports teams regardless of what kinds of headaches that might cause the NCAA.

That the current Board would endorse the idea that private university sports teams can unionize is plausible enough. But it is also plausible that, given the relatively small stakes of permitting this kind of unionization (there aren’t that many private universities with big time athletics programs), they may decide that it is not worth doing, especially given the political backlash that could result.