In September 2023, the Service Employees International Union filed a petition to represent the players of the Dartmouth College “men’s basketball team.” In March 2024, elections were held. The Dartmouth College men’s basketball team voted 13-2 to be represented by Service Employees International Union (SEIU) Local 560 regarding the terms and conditions of their purported employment.
After the election, National Labor Relations Board (NLRB) Region 01 Regional Director Laura Sacks certified the election results and ordered Dartmouth to begin negotiations with the SEIU over the terms and conditions of the athletes’ alleged employment. Dartmouth appeals the decision to the full NLRB and refused to negotiate with the SEIU, saying basketball players were not employees. In the summer, SEIU Local 560 filed a complaint for unfair labor practice against Dartmouth, asserting that Dartmouth’s refusal to negotiate violated its obligation to negotiate in good faith under the National Labor Relations Act (NLRA). Following this 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 error in concluding that these students were employees. . . . In March, we appealed the Regional Director’s decision to the full NLRB and continue to await its review. In the meantime, we have refused to negotiate with SEIU Local 560 on this issue. This is an unprecedented step in the long run Dartmouth’s collective bargaining history, but this is the only leverage we can use to ensure that this matter is heard in federal court. We expected that this action would result in them 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 petition to the NLRB. Bloomberg reported that Local 560 President Chris Peck released a statement on the withdrawal, saying:
“By filing a request to withdraw our petition today, we seek to preserve the precedent set by this exceptional group of young men’s varsity basketball team. They advanced the debate on employment and collective bargaining in college sports and made history by being classified as employees, winning their union election 13-2, and becoming the first certified college athlete bargaining unit in the country. We are extremely disappointed that Dartmouth has chosen not to comply with the team’s decision and federal labor law by refusing to negotiate, thereby violating their own code of ethical business conduct.
It is clear that this withdrawal was made in response to the November elections. Specifically, once Trump is inaugurated, he will likely appoint new NLRB board members to fill two vacancies and replace the NLRB’s general counsel. The new board majority and new GC will be much more employer-friendly than what employers faced under the Biden board and its GC, Jennifer Abruzzo. SEIU was obviously wary of what a Republican-majority Trump board would do with the Region 01 decision and did not want to set a negative precedent from the entire board on the issue of student-athlete employment status. If the RC petition was not withdrawn, it was very unlikely that Trump’s NLRB as a whole would find that Dartmouth student-athletes were employees and it is very likely that the petition would have been rejected by the new board. SEIU Local 560 sought to avoid this outcome and voluntarily withdrew its RC petition, effectively ending efforts to unionize the Dartmouth men’s basketball team.
The NLRB’s complaint against the Pac-12 Conference, the NCAA and the University of Southern California, which relates to the status of student-athletes as employees under the NLRA, continues to be the subject of litigation. However, given the expected makeup of the Trump NLRB, it is likely that the issue will also be withdrawn once the Trump NLRB takes shape. A Trump NLRB is unlikely to conclude that NCAA student-athletes are employees with the right to organize and negotiate. Thus, this issue will likely die unresolved for at least the next four years, unless legislation is passed to attempt to establish some organization to the current NCAA as well as the status and rights of student-athletes, which remain uncertain and complex after the 2021. SCOTUS ruling in NCAA vs. Alston on the null rights of student-athletes.
This blog will continue to keep you informed of developments related to the employment status of student-athletes.
