On September 18, 2023, Benjamin Stockman was quoted in an article about the recent petition for a union representation election among players on Dartmouth College’s men’s basketball team.
According to the article, National Labor Relations Board (NLRB) general counsel Jennifer Abruzzo cited NCAA v. Alston (594 US _, 141 S. Ct. 2141 (2021)) in a September 2021 memo, opining that certain student-athletes are employees under the NLRA and pledging to assert that view in litigation. Abruzzo opined that the NLRA "fully supports a finding that scholarship football players at Division I FBS private colleges and universities, and other similarly situated players at academic institutions," are employees, reviving a stance former general counsel Richard Griffin announced in January 2017. In May, Abruzzo's office brought a case accusing the University of Southern California, the Pac-12 Conference, and the NCAA of violating the NLRA by treating athletes as non-employees.
Stockman said it remains to be seen whether Abruzzo's memo leaves her on an island or whether the board—where Democrats have a 3-1 majority—will adopt her view of athletes' rights. But the broader trend "certainly seems to be heading in that direction" following the Supreme Court's decision and alongside other litigation, like a pending Third Circuit suit asking whether student-athletes are employees under federal wage law, Stockman said. The board resolves worker status questions using the common law, which holds that a worker is an employee if they work under another's control in return for payment. Applying this to the student-athletes will involve several questions, including the school's sway over their schedules, whether their scholarships amount to payment for their services, and whether the team is a commercial entity the board can regulate, Stockman said. "I think that's a fundamental question that has to be answered, and it also gets directly to the line drawing issue of, will they take a team-by-team approach [with each new petition] … or will there be a broader ruling that's more along the lines of the analysis that general counsel Abruzzo has taken," Stockman said.
The filing comes at a fertile time for organizing in which labor unions are increasingly looking to organize workers outside their traditional industries, Stockman said. So, the Dartmouth petition may not be the last seeking to establish a union of athletes, provided it results in a favorable ruling for Local 560.
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