Efforts to Turn NCAA Student-Athletes Into Employees Takes A Major Step Backwards
Topics: Union-Management Relations
In September 2023, the Service Employees International Union filed a Petition to represent the players on the Dartmouth College “Men’s Basketball Team.” In March 2024, an election was held. Dartmouth College’s mens’ basketball team voted 13-2 to be represented by the Service Employees International Union (SEIU) Local 560 with respect to the terms and conditions of their alleged employment.
Following the election, Laura Sacks, the Regional Director for Region 01 of the National Labor Relations Board (NLRB), certified the election results and ordered Dartmouth to begin bargaining with the SEIU over the terms and conditions of the athletes’ alleged employment. Dartmouth appealed the decision to the full NLRB and refused to bargain with the SEIU, declaring that the basketball players were not employees. In the summer, SEIU Local 560 filed an unfair labor practice charge against Dartmouth, asserting that Dartmouth’s refusal to bargain violated its duty to bargain in good faith under the National Labor Relations Act (NLRA). Following that complaint, Dartmouth released an official statement, which read in part:
“Dartmouth’s decades-long commitment to athletics is an extension of our academic mission, and we maintain that the regional director made an extraordinary mistake in finding these students are employees, . . . In March, we appealed the regional director’s decision to the full NLRB and continue to await their review. In the meantime, we have declined to bargain with SEIU Local 560 on this matter. It is an unprecedented step in Dartmouth’s long history of labor negotiations, but it is the only lever we can engage to ensure this matter is reviewed by a federal court. We expected this action would result in their filing an unfair labor practice charge with the NLRB, which they did and which we will also appeal.”
On Tuesday, SEIU Local 560 suddenly and unilaterally withdrew its NLRB petition. Bloomberg reported that Local 560 President Chris Peck issued a statement on the withdrawal, stating:
“By filing a request to withdraw our petition today, we seek to preserve the precedent set by this exceptional group of young people on the men’s varsity basketball team. They have pushed the conversation on employment and collective bargaining in college sports forward and made history by being classified as employees, winning their union election 13-2, and becoming the first certified bargaining unit of college athletes in the country. We are extremely disappointed that Dartmouth chose not to respect the team’s decision and federal labor law by refusing to bargain, thus violating their own Code of Ethical Business Conduct.”
It's clear that this withdrawal was made in response to the November election. More specifically, once Trump is inaugurated, he will likely appoint new NLRB Board members to fill two vacant positions and replace the NLRB General Counsel. The new Board majority and new GC will be much more employer-friendly than what employers have had to face under the Biden Board and its GC, Jennifer Abruzzo. The SEIU obviously became wary of what a Trump Republican majority board would do with the Region 01 decision and did not want to establish a negative precedent from the full Board on the issue of the employment status of student-athletes. If the RC Petition was not withdrawn, it was highly unlikely that the full Trump NLRB would find that the Dartmouth student-athletes were employees and very likely that the petition would have been thrown out by the new Board. SEIU Local 560 sought to avoid this result and voluntarily withdrew its RC Petition, terminating the efforts to unionize the Dartmouth mens’ basketball team.
The NLRB’s complaint against the Pac-12 Conference, the NCAA, and the University of Southern California, which is related to student-athletes' status as employees under the NLRA, continues to be litigated. However, given the expected make-up of the Trump NLRB, it is likely that the matter will also be withdrawn once the Trump NLRB takes shape. It's unlikely that a Trump NLRB would find that NCAA student-athletes are employees with a right to organize and bargain. Thus, this issue will likely die on the vine for at least the next four years unless some legislation is passed to try to establish some organization to the current NCAA and the status and rights of student-athletes, which remains uncertain and complex following the 2021 SCOTUS ruling in NCAA v. Alston on NIL rights of student-athletes.
This blog will continue to keep you updated on the developments related to the employment status of student-athletes.
