Last Updated on February 13, 2024
The Dartmouth men’s basketball team faces a union election following a landmark decision by a National Labor Relations Board regional director, signaling a potential transformation in the relationship between Division I college athletes and their institutions.
On Monday, Laura Sacks – Boston’s NLRB regional director – issued a ruling that classifies Dartmouth’s basketball athletes as “employees” under the National Labor Relations Act. Sacks rejects the long-held position that college athletes are amateurs primarily because of their academic commitment while attending school, a decision that many lawyers and athlete advocates have been calling inevitable for years.
Degree of Control Central to NLRB Decision
In her analysis, Sacks emphasizes the extensive degree of control that the university holds over its basketball college athletes.
“Because Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform that work in exchange for compensation, I find that the petitioned-for basketball players are employees within the meaning of the [National Labor Relations] Act,” the ruling states.
“The Student-Athlete Handbook in many ways functions as an employee handbook, detailing the tasks athletes must complete and the regulations they may not break,” Sacks added.
In September, all 15 members of the basketball team submitted a petition to join Service Employees International Union Local 560, which currently represents Dartmouth employees, enabling them to collectively bargain for better working conditions. The NLRB ruling clears the way for Dartmouth basketball players to establish the first successful labor union for NCAA athletes.
Expect an Appeal of the NLRB Decision
The school can, and likely will, appeal Monday’s decision to the national division of the NLRB in Washington, D.C. The appeal process could take up to a few years, but even if upheld, the decision does not open the door for every college athlete to be considered an employee. Instead, this is a narrow ruling with application to the 15 athletes on the Dartmouth men’s basketball team. The decision, however, could have far-reaching effects across the country through similar cases challenging college athletes’ amateur status – notably the NLRB trial in Los Angeles involving USC, the Pac-12 Conference, and the NCAA.
How International Athletes are Impacted by the NLRB Decision
While the historic decision is a significant win for domestic college athletes, the four foreign national athletes currently competing on the Dartmouth basketball team are potentially now at heightened risk of losing their playing status. Assuming that these athletes are attending school on F-1 visas, like most international college athletes, they are prohibited from working more than 20 hours per week on campus during the academic year. It is unlikely that employment as an athlete would qualify as on-campus work under F-1 visa restrictions. Regardless, college athletes often spend more than 30 hours per week in sports-related activities.
Beyond the on-campus work restrictions, students on F-1 visas are permitted to work more than 20 hours per week in limited circumstances, such as in curricular practical training or optional practical training – neither of which appear to be remotely compatible with employment as an athlete.
“[An employment] designation, without a change in law or policy, is fundamentally incompatible with the F-1 student visas these athletes hold,” Ksenia Maiorova, a Florida-based sports immigration attorney with Green and Spiegel, told Business of College Sports. “This is a signal to the Department of Homeland Security that this is no longer a ‘wait and see’ situation; we need guidance.”
Interestingly, there has been very little discussion by the NCAA, institutions, and government officials regarding the potential impact that employment status could have on foreign national athletes.
“While the NLRB decision to classify the Dartmouth basketball team as employees does not extend to the remaining 20,000+ international student-athletes in the NCAA yet, this development is a sign of a changing landscape that is likely to eventually lead to the designation of all student-athletes as employees,” Maiorova said.
The concern that baffles Maiorova the most is the lack of “organizational” or “institutional advocacy” for international athletes:
“International student-athletes are an intrinsic part of the competitive landscape in the NCAA now. Just consider the cases of [former WVU and Kentucky basketball player] Oscar Tshiebwe, [Purdue basketball player] Zach Edey, and [Arizona State swimmer] Leon Marchand. It is unclear why we are not seeing more of an effort to advocate for change from the schools that benefit from this talent or the NCAA itself. Certainly, these voices are more compelling in the eyes of DHS and Congress than the grassroots campaigns we have seen thus far.”
United advocacy among various stakeholders appears to be the best, or at least the most practical, path forward to push for change at the federal level, as the ability to find workarounds to the F-1 visa restrictions comes with significant risk. Under the Doctrine of Consular Non-Reviewability, visa decisions made by “consular officers,” who work for the U.S. Department of State, are generally immune from judicial review. In other words, consular officers’ decisions are final, and if a college athlete were to attempt a workaround to a visa and is denied, the athlete could bear significant consequences to their immigration future.
There are also various other visas that foreign national college athletes could apply for, such as the P-1A, O-1A, and EB-1A visas, each of which has its own unique requirements and is obtainable for certain high-level or internationally recognized athletes but are not obtainable for the majority of college athletes.
As the widespread employment status of college athletes becomes more likely in the future, the path forward for international college athletes continues to tread in uncertainty.