Are College Athletes Employees? Northwestern, Dartmouth and the Right to Unionize

Timeline

1. Jan 2014Northwestern quarterback Kain Colter and the College Athletes Players Association file a petition with the NLRB.
2. Mar 26, 2014NLRB Regional Director Peter Ohr rules that Northwestern's scholarship football players are employees.
3. Apr 25, 2014The players vote; ballots are impounded pending review.
4. Aug 17, 2015The full NLRB unanimously declines jurisdiction, without deciding whether the players are employees.
5. Feb 5, 2024Regional Director Laura Sacks rules that Dartmouth men's basketball players are employees.
6. Mar 5, 2024The Dartmouth players vote 13–2 to join SEIU Local 560.
7. Jul 11, 2024In Johnson v. NCAA, the Third Circuit holds that college athletes may be employees under the Fair Labor Standards Act.
8. Dec 31, 2024The union withdraws its Dartmouth petition before the case reaches a changed NLRB.

The ethical issues

• Employee status: whether athletic participation is work controlled by the university.
• Collective voice: whether athletes need bargaining rights to protect their interests.
• Public vs. private institutions: federal labor law covers only private schools.
• Education and amateurism as reasons to treat athletes differently.
• Health, time demands and the control coaches exercise over athletes' lives.

Stakeholders

Stakeholder	Interests & obligations
College athletes	Pay, health care, time limits, and a voice in rules affecting them.
Private universities	Costs, autonomy, and the academic mission.
Public universities	Governed by state labor law, creating uneven rules.
NCAA and conferences	A national system that labor law could fragment.
Unions	Organizing a new class of workers.
NLRB and courts	Applying labor law consistently as politics change.

The case

The National Labor Relations Act gives employees of private employers the right to organize and bargain collectively. It does not cover public universities, whose employees fall under state law. Whether college athletes are “employees” had never been decided when Northwestern quarterback Kain Colter and the newly formed College Athletes Players Association filed a petition with the NLRB in January 2014.^[1][2]

Background

The question had been building for decades. In the 1950s, courts in two states treated injured scholarship athletes as university employees for workers’ compensation purposes. According to the Third Circuit’s account, those rulings led the NCAA to adopt “student-athlete” as the exclusive label for its players, and later courts largely accepted amateurism as a reason to deny employee status.^[7] The Supreme Court’s 2021 decision in NCAA v. Alston changed the climate. A unanimous Court held that its earlier praise of amateurism did not shield NCAA pay rules from scrutiny. In a concurrence, Justice Kavanaugh wrote that “the NCAA is not above the law.” He added that “businesses like the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of [its] product.”^[7] Months later, the NLRB’s general counsel issued a memo taking the position that some college athletes are employees under labor law.^[7]

The rules and governance

The 2015 decision turned on the structure of college football more than on the players. The Board noted that it has no jurisdiction over state-run colleges, which made up 108 of the roughly 125 teams in the top tier of Division I football, and that every Big Ten school except Northwestern was public. Because the NCAA and conferences maintain substantial control over individual teams, it held that bargaining at one private school would not promote labor stability. It stressed that the decision was narrow and did not preclude reconsidering the issue in the future.^[2]

The labor law route and the wage law route use different tests. Under the National Labor Relations Act, the question is the common-law test of control in exchange for compensation. Under the Fair Labor Standards Act, the Third Circuit held in Johnson that athletes may be employees if they perform services primarily for a school’s benefit, under its control, in return for express or in-kind compensation. It also held that the “frayed tradition” of amateurism cannot bar such claims as a matter of law.^[7] The court described the stakes. The NCAA regulates about 1,100 schools and some 500,000 athletes and holds multibillion-dollar broadcast contracts.^[7]

Northwestern, 2014–2015

On March 26, 2014, NLRB Regional Director Peter Ohr ruled that Northwestern’s scholarship football players were employees. He emphasized the hours they devoted to football, the control coaches exercised over their schedules and conduct, and the scholarship as compensation tied to athletic performance. The players voted in April 2014, but the ballots were impounded while Northwestern sought review.^[1]

On August 17, 2015, the full Board unanimously declined to exercise jurisdiction. It did not decide whether the players were employees. Instead, it reasoned that asserting jurisdiction over one private school’s team, in a league made up mostly of public universities beyond the Board’s reach, would not promote stability in labor relations.^[2] Formally, the Board exercised its discretion and dismissed the union’s representation petition, and it said the decision applied only to the players in that case.^[2] The ballots were never counted.

Dartmouth, 2024

A decade later, the issue returned in a different form. Dartmouth, an Ivy League school, does not award athletic scholarships. On February 5, 2024, NLRB Regional Director Laura Sacks ruled that Dartmouth’s men’s basketball players were nonetheless employees. She found that Dartmouth controlled their work and compensated them through benefits such as equipment, tickets and support services, and that the team generated value for the college.^[3][4]

On March 5, 2024, the players voted 13–2 to join Service Employees International Union Local 560, becoming the first college team in the country to vote to unionize.^[5] Dartmouth sought review and declined to bargain. In December 2024, with the incoming administration expected to change the Board’s majority, the union withdrew its petition to avoid an adverse precedent.^[6]

Wage law

A separate line of cases asks whether athletes are employees under the Fair Labor Standards Act, which governs minimum wage. In Johnson v. NCAA, decided July 11, 2024, the Third Circuit held that college athletes are not barred from employee status simply because they are amateurs. It sent the case back for the lower court to apply an “economic realities” test.^[7] The plaintiffs claimed minimum wage for time spent on their sports. The defendants were the NCAA and a group of member colleges.^[7] The district court had borrowed a test the Second Circuit uses for unpaid interns, which asks who is the “primary beneficiary” of the relationship. The Third Circuit rejected that approach. It vacated the ruling and told the trial court to analyze the case under “common-law agency principles,” and to let the plaintiffs amend their complaint.^[7] The opinion also reviewed the history behind the label. The NCAA was chartered after at least twenty players died on football fields in 1904. Its early ban on athletic scholarships “was openly defied,” and in 1956 it brought some forms of compensation within its rules.^[7] One judge concurred only in the judgment. He argued that the court should not have taken the interlocutory appeal and that factual questions remained unresolved.^[7]

Aftermath

Pay arrived through antitrust law rather than labor law. On June 6, 2025, Judge Claudia Wilken approved the House settlement. It included $2.576 billion in damages over ten years and allowed Division I schools to pay athletes directly, up to an annual cap estimated at more than $20 million per school for 2025–26. A new College Sports Commission was set up to police revenue sharing and endorsement deals.^[8] Schools could begin paying athletes on July 1, 2025.^[8] The Dartmouth petition had been withdrawn, the Northwestern ballots were never counted, and Johnson went back to the trial court. The question of whether athletes are employees therefore remained open under both labor and wage law.^[2][6][7]

The core dilemma

College athletes train and compete under close direction, generate revenue, and receive benefits in return. Universities say they are students first, engaged in an educational activity. Which description fits, and should the answer depend on the sport, the school or the athlete?

Competing values

• Labor rights vs. educational mission: organizing rights against the view that athletics is part of education.
• Uniformity vs. legal reality: a national sports system against a labor law that covers only private schools.
• Athlete voice vs. institutional control: bargaining power against universities’ authority.
• Stability vs. justice: the Board’s 2015 concern for stable labor relations against athletes’ claims.

Strongest arguments

For employee status: the control, hours and value involved match employment in any other setting. Without bargaining rights, athletes have no structured way to negotiate safety, time demands, health care or pay.

Against it: most college athletes play in sports that lose money, and treating all of them as employees could lead schools to cut programs. Mixing public and private labor law would fragment national competition, and athletics has real educational value.

Applying the frameworks

Justice

A justice lens asks how the value created by college sports is shared. Athletes in revenue sports generate large sums for schools, conferences and the NCAA, while their pay has been capped at the cost of attendance and, more recently, a share of revenue designed to avoid employee status. The lens asks whether that distribution is fair, and whether athletes in non-revenue sports, who may cost more than they bring in, should be treated differently.

Rights

The rights lens centers on the right to organize and bargain collectively, which other workers in the United States have. If athletes perform services under control in return for compensation, denying them a voice in rules about hours, health and pay raises a rights question. The lens also respects athletes’ rights to choose: some may prefer the student model, and any system should let them have a say.

Utilitarian

Consequentialists weigh the benefits of employee status (bargaining power, safety protections, wages) against possible costs: schools cutting non-revenue sports, tax and Title IX complications, and differences between public and private schools. The NLRB’s 2015 reasoning was itself consequentialist, focused on labor stability across a league, not on the players’ status.

Walk it through: the Simple Decision Model

1. Spot the issue. You are Dartmouth’s general counsel after the February 2024 regional decision. The men’s basketball players have voted to unionize. The stakeholders include the players, other Dartmouth athletes, the Ivy League, faculty, donors, the NLRB and other colleges watching the case. The codes in play are the National Labor Relations Act, Ivy League rules and NCAA bylaws.
2. Gather facts. What does the decision actually require of you? What do you know about the players’ concerns, and what might be driving your preference to resist?
3. Test options. Options: (a) seek review and refuse to bargain; (b) bargain while appealing; (c) open voluntary discussions with players on their concerns, outside the formal process. Weigh athletes’ rights against institutional and league-wide consequences.
4. Check codes and law. Test your choice against your institution’s stated values on labor and student welfare. Would it look consistent next to how you treat graduate student unions?
5. Decide and document. Document your reasoning and keep players informed about the legal process.
6. Communicate and follow up. Communicate openly with the team and campus, and commit to addressing the issues players raised, whatever the legal outcome.

What’s settled and what’s contested

• Settled: the 2014 and 2024 regional rulings; the Board’s 2015 refusal of jurisdiction; the Dartmouth vote and withdrawal; the Third Circuit’s 2024 ruling.
• Contested: whether athletes are employees under federal labor law; whether Congress will legislate; how revenue sharing affects the analysis.

Why this case matters

Employee status determines who has bargaining power in college sports. These cases show how much the answer depends on legal forums and political timing, as well as on what athletes actually do.

Key terms

Myth of amateurism

The critique that athletes generate large revenues without the pay or labor protections other workers have. Tested by justice, consent and dignity.

Agency

An athlete’s ability to make decisions and act independently about their body, career and voice.

Distributive justice

Fairness in how scarce opportunities, resources, benefits and burdens are shared.

Commercialization

The process of turning sport into a product and a business enterprise, with profit pressures that can compete with principle.

Definitions from the Ethics Cases glossary.

Discussion questions

1. Athletes practice and play under coaches' direction for many hours a week in exchange for scholarships or other benefits. Is that employment? What would make it not employment?
2. Dartmouth players had no athletic scholarships. Why might that strengthen or weaken their claim?
3. If athletes at private schools can unionize and those at public schools cannot, is that fair? What should happen?
4. The Dartmouth players withdrew rather than risk an adverse ruling. Was that a wise strategy?
5. What could athletes gain from collective bargaining that the House settlement does not provide?

Sources

1. Northwestern Wildcats football — Wikipedia
2. Board Unanimously Decides to Decline Jurisdiction in Northwestern Case — National Labor Relations Board
3. Dartmouth men's basketball players are school employees, official decides — Associated Press
4. Decision and Direction of Election, Trustees of Dartmouth College, Case 01-RC-325633 — NLRB Region 1 (via Employer Law Report)
5. Dartmouth men's basketball team votes to unionize — Associated Press
6. Dartmouth basketball players end attempt to unionize in anticipation of shifting NLRB — Associated Press
7. Johnson v. National Collegiate Athletic Association, No. 22-1223 (3d Cir. 2024) — Justia
8. House Settlement Approved: How to Prepare for Implementation by July 1, 2025 — Crowell & Moring LLP