On Monday, February 5, the National Labor Relations Board (NLRB) approved a union election for members of the Dartmouth College men’s basketball team. Here, labor law expert William B. Gould IV discusses the implications of and driving forces behind the potentially game-changing decision.

What drove the NLRB’s decision?

The driving force is the willingness of so called “student athletes” to protest the status quo as they have witnessed expanding revenues for universities, fostered by rich television and internet contracts in “big revenue” athletics—monies shared by coaches and university administrators, but not the very players who produce the product on the field or in the arena. Until recently, the players tolerated the status quo, placing their hope on potential future income from professional sports, but the expanding financial pot from which players were excluded, an interest in participating in non-economic issues like health and safety coupled with recognition that only an infinitesimal percentage of the players could go pro, drove focus onto college conditions.

The Dartmouth case is one of a number of legal mechanisms designed to remedy this inequity, the most prominent being the 2021 SCOTUS ruling in Alston, which declared NCAA devised prohibitions against certain “educational” benefits for college athletes to be in violation of antitrust law. With near simultaneity, state legislatures—California was a leader—enacted so called NIL laws, which allowed athletes to be compensated for use of their names, images, and likenesses, leading to creation of “collectives” of university friends and donors who pay athletes for non-athletic appearances and advertisements.

Finally, college athletes have contended that they are “employees” under a number of labor statutes, particularly the Fair Labor Standards Act proving for minimum wages and premium pay for work performed beyond maximum hours. Athletes have also filed petitions, like the Dartmouth basketball players have done, seeking collective bargaining as employees so that they may bargain for enhanced compensation and involvement in the shaping of working conditions like health and safety issues.

Do you think it was the right move by the NLRB?

The NLRB Boston Regional Director Dartmouth ruling (it’s appealable to the NLRB in Washington, as well as the federal courts) is a sound one, carefully and well-reasoned.  I think that it was the right move as a matter of law, finding the existence of both employer control of the athletes as well as compensation, the basic prerequisites to a conclusion that an individual is an employee under the law. Of course, it will subject the NLRB to political pressure, perhaps a reduction of appropriations or the threat thereof.

How will this decision impact the future of collegiate athletics?

It is difficult to say. Bargaining can allow some athletes to share more equitably available revenues, but many athletes are not so willing to be as audacious as the Dartmouth players. Universities may subtly suggest that their sport will be discontinued or that other sports will be discontinued, placing pressure on the athletes to back down. As we can see in Starbucks, bargaining can be drawn out or delayed and athletes may become discouraged, particularly given the relatively short time available for them to enjoy the fruits of a negotiated agreement. Athletes are aware that the conference realignments are focused upon the university’s interests and not those of the athletes who must endure long coast to coast plane travel, which make a mockery of the athletes’ status as students. Some athletes may have an interest in bargaining about the imposition of more onerous conditions which require them to spend large amounts of time away from campus while they attempt to study.

And though competitive athletics in the pro arena have seen certifications to bargain on a multi-employer basis, in this case the NLRB Regional Director ordered a ballot for Dartmouth alone, not the entire Ivy League as multi employers. In an earlier ruling involving the Northwestern football team, like the one in Dartmouth, the Chicago Regional Director found that college players were employees because of the presence of employer control and compensation, the Board (perhaps fearful of Congressional hostility) did not resolve the employee issue and refused to assert jurisdiction because a number of schools were public in the Big 10 and thus beyond NLRB jurisdiction. But the Board has long held that the fact that excluded employers over which it cannot assert jurisdiction makes bargaining on some issues impractical or impossible doesn’t matter—the employees and employers decide what they can bargain on notwithstanding the ability of parties outside the Board’s jurisdiction to limit what can be bargained, not the NLRB.

Are there any significant downsides to it?

A downside, which universities use to scare athletes, is the question of what happens to small revenue sports (only football and basketball produce big revenue), which are disproportionately female, raising the potential for Title IX violations.  Athletes and universities must negotiate so as to take into account the position of all athletes regardless of sport.

William B. Gould IV is Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School. A prolific scholar of labor and discrimination law, Gould has been an influential voice in worker–management relations for more than fifty years and served as Chairman of the National Labor Relations Board (NLRB, 1994–98) and subsequently Chairman of the California Agricultural Labor Relations Board (2014-2017). Professor Gould has been a member of the National Academy of Arbitrators since 1970. As NLRB Chairman, he played a critical role in bringing the 1994–95 baseball strike to its conclusion and has arbitrated and mediated more than three hundred labor disputes, including the 1992 and 1993 salary disputes between the Major League Baseball Players Association and the Major League Baseball Player Relations Committee. He served as Secretary, Labor and Employment Law Section, American Bar Association (1980-81) as well as Independent Monitor for FirstGroup America, addressing freedom-of-association complaints (2008–10). Shortly after the passage of Title VII of the Civil Rights Act of 1964, Professor Gould served as a Consultant to the Equal Employment Opportunity Commission (1966-67) providing recommendations on seniority disputes and conciliation procedures and in 1967 he was a member of the very first Fact Finding Board established under the New York Taylor Law. Gould also served as Special Advisor to the U.S. Department of Housing and Urban Development on project labor agreements (2011–12) and as Independent Reviewer on Equal Employment Opportunity for the Mayor of San Francisco (2020-21). A critically acclaimed author of 11 books and more than sixty law review articles, Professor Gould is the recipient of five honorary doctorates for his significant contributions to the fields of labor law and labor relations.