Making Sense of the Dartmouth Decision | Part 2

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What this means for your campus.

Having introduced the cast and set the scene in part 1 of this 3-part series, we turn now to the details.
But before doing so, let’s get one thing out of the way – you likely won’t have unionized players on campus tomorrow, but the writing is on the wall, and on the pages of a fairly detailed National Labor Relations Board (NLRB) ruling.

So, as you read on, consider why this might unfold on your campus. If you’re a public institution, then perhaps the lessons are purely academic. If you’re a private institution, then now may be the time to overlay the Dartmouth decision with your campus and athletic operations.

Did the players perform work for Dartmouth?

Yes. The NLRB noted that the men's basketball team performed work for the institution through a combination of tasks and responsibilities integral to the operation and representation of the college's athletic program. The players were expected to practice, attend games, and fulfill the duties associated with being team members, which were deemed work because these activities were performed in exchange for compensation. True, the compensation did not come in the form of salaries, but it did include benefits such as "early read" for admissions, athletic gear and apparel, game tickets, lodging, meals, academic services, and other supportive resources.

Think about this: Players on all teams – revenue and non-revenue sports – could be considered employees if they benefit your institution in a similar way. The decision was clear that a team’s ability to produce revenue is immaterial. Who on your campus is excelling at engaging alumni, raising money, and generating publicity for your school? Could they be performing “work”?

What about the control exerted by the College over its players?

That, too, broke for the players. On any number of fronts, the NLRB had little trouble finding that Dartmouth “exercises significant control over the basketball players’ work,” and while the finding is rooted in the constraints that Dartmouth imposes on players, the NLRB was methodical in pointing out the extent to which the control is exercised. For instance,

Scheduling and time commitments: Dartmouth determined the players' schedules, including practices, games, and team-related activities for them. The College set the time and duration of these commitments, managing significant portions of the players' time.

Athletic requirements and expectations: Players were expected to maintain a level of physical fitness and performance, adhere to training regimens, and follow specific game strategies and team rules set by the coaching staff.

Travel and accommodations: The College arranged and controlled players’ travel plans for games and tournaments, including accommodations and meals, further regulating the players' movements and activities.

Think about this: Is your setup any different from Dartmouth’s? Likely not. All athletic departments maintain a student-athlete handbook. Does it function as an employee handbook? If so, what can be stripped away, if anything, while maintaining functionality of the athletic program?

The NLRB alluded to the fact that a student-athlete handbook is linked, in large part, to the National Collegiate Athletic Association (NCAA) divisional bylaws, though it went a step further, noting that schools “[have] significant ability to make decisions within the framework of those restrictions.”

With that in mind, the NLRB’s framing may be overlooking the reality of competition in collegiate athletics. For instance, to underscore the point that schools have flexibility within the framework, the NLRB offered that coaching staffs may permit players “to take part in less than the maximum” of NCAA’s Countable Athletically Related Activity (CARA) requirements. Less than the maximum may be a hard sell.

Oh, and if your athletic staff has an office, fundraising, and/or marketing department, consider how that is impacting this student-athlete-as-employee classification. Brand management – integral to quite literally any entity with IP assets – may also be a determinant of student-athletes performing work for an institution.

But compensation broke for Dartmouth, right?

Wrong. The NLRB found that the Dartmouth men’s basketball team performs “work” in exchange for “compensation.” Yes, it is that simple, even if it’s not. Again, the players were not receiving traditional wages, the NLRB acknowledged as much. With that, the players didn’t even receive the athletic scholarships enjoyed by the football players at issue in the Northwestern NLRB decision.

However, the players were “compensated” through a “non-traditional form.” Instead, the players received equipment and apparel (including basketball shoes valued in excess of $1000 per player per year) as well as tickets to games, lodging, meals, and the benefits of “Dartmouth’s Peak Performance” program which provides academic support, career development, sports and counseling psychology, sports nutrition, and more.

In addition, recruiting and early admission advantages may also be considered compensation. The players received benefits of “early read” for admission prior to graduating high school. The Dartmouth basketball players chose Dartmouth over other institutions and will receive lifelong benefits for their choice. This, according to the ruling, has value.

Think about this: Most athletic teams at all levels, to a certain degree, provide these kinds of “benefits” or “compensation” to their athletes. Until somewhat recently, the belief was that such benefits were supportive measures for education, rather than payment for work. Now, however, it may require institutions to rethink how financial aid, scholarships, and other benefits are structured for student-athletes. In other words, perhaps they’ll be more closely tied to academic pursuits, with clearer expectations of players when they are off the court.

In the next part of our series, we’ll explore potential paths forward – recognizing that an appeal may be in the works.

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