The ongoing battle to turn NCAA student-athletes into employees continued this week. As reported here early this year, in February, Laura Sacks, Regional Director of Region 1 of the National Labor Relations Board, issued a decision finding that the male varsity basketball players at the Ivy League’s Dartmouth College were employees of the school, despite not being offered athletic scholarships.   

The decision required Dartmouth to bargain with SEIU Local 560, the union representing the basketball players, over terms and conditions of “employment.” Dartmouth refused to bargain and announced that it believed that court review would demonstrate that the NLRB decision holding that its varsity basketball players were employees would be overturned.  

Yesterday, SEIU Local 560 filed an unfair labor practice complaint against Dartmouth asserting that Dartmouth’s outright refusal to bargain with SEIU violated Dartmouth’s duty to bargain in good faith under the National Labor Relations Act. The next step is for the complaint to be investigated by Region 1 of the NLRB. If a violation is found as a result of the investigation, Region 1 will issue an unfair labor practice charge against the school.

In response to yesterday’s SEIU complaint, Dartmouth issued 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.”

As we previously summarized in late 2023, the NLRB has undertaken a series of related actions and steps in an attempt to successfully have NCAA student-athletes labeled as employees under the National Labor Relations Act. In addition, last month, in Johnson v. NCAA, the Federal Court of Appeals for the Third Circuit held that student-athletes are not necessarily barred from being considered employees under the federal wage and hour statute, the Fair Labor Standards Act. 

This student-athlete v. employee issue is being monitored closely by CDF Labor Law’s Traditional Labor Law Practice Group and this author. This blog will continue to keep you updated on this ULP charge and the key developments related to the push by unions, athletes, and others to force employee status on NCAA student-athletes