In a move that punts the college-athlete-as-employee question to another day, the union representing Dartmouth College men’s basketball players on Tuesday requested the withdrawal of its petition to the National Labor Relations Board seeking unionization for the team.

The move is designed to avoid legal and political risks associated with expected personnel changes at the NLRB following the inauguration of Donald Trump as the 47th president. Relatedly, it reflects awareness of procedural limitations for appealing an adverse agency decision on unionization to a court. 

The Service Employees International Union, Local 560’s request was made to the NLRB Region 01 office in Boston. A request of this nature means the union voluntarily no longer wishes to proceed and informs the NLRB it doesn’t want the agency’s jurisdiction to enforce any rights.

Withdrawal is not automatic and must be granted by the agency. The timing of the request reflects the union’s desire to have it reviewed by the agency before President Joe Biden’s term ends on Jan. 20. It is also not an isolated maneuver in that representation withdrawal requests for other labor matters are anticipated over the next couple of weeks. 

The union and the players, who were directly involved in this decision, faced two main areas of NLRB-related concerns.

First, there is worry Trump will replace the current NLRB general counsel, Jennifer Abruzzo, with someone who is less likely to advocate for the recognition of college athletes as employees. In 2021, Abruzzo wrote an influential memo contending that D-1 college athletes are employees within the meaning of the NLRA and have been misclassified as student-athletes. The Dartmouth players (and others) have used the memorandum to bolster their legal arguments. 

Although not a member of the agency’s board, the general counsel plays a crucial role by advising board members and overseeing investigations. It’s unknown who will replace Abruzzo, but Trump’s first term general counsel, Peter Robb, rescinded a memorandum authored by his predecessor, Richard Griffin, that concluded D-1 college athletes are employees. 

Abruzzo’s successor could rescind her 2021 memo and issue a new memo asserting that college athletes are not employees. If the Dartmouth matter remains before the NLRB, a new general counsel could urge board members and potentially judges to find Dartmouth players are not employees. Such a development could chill player unionization efforts at other colleges.

On the other hand, there’s no guarantee that Abruzzo’s successor will oppose college athletes as employees. In fact, many conservatives, including Trump judicial picks (U.S. Supreme Court Justice Brett Kavanaugh; U.S. District Judge Clifton Corker; and Chief U.S. District Judge William L. Campbell Jr.), have written that modern-day D-1 college athletes function as a labor market and have been economically mistreated by NCAA rules. But the loss of Abruzzo creates uncertainty.

Second, the union and players are cognizant that the agency’s five-person board is in flux and could become less favorable to Dartmouth athletes. 

Earlier this month, the Senate voted 50-49 against holding a confirmation vote on the nomination of NLRB Chair Lauren McFerran, whose term ended Dec. 16. The Senate’s move ended the chance for McFerran, a Democratic-board member, to continue for another term. Earlier this year, McFerran, along with David Prouty (Democrat) and Gwynne Wilcox (Democrat), voted to deny Dartmouth’s petition to stay the union election, with Marvin Kaplan (Republican) siding for the college. McFerran was regarded as favoring the players’ effort.

There are now two vacancies, and Trump is expected to issue nominations for those vacancies early in his term as well as designate a new chair (presumably Kaplan). Assuming Trump’s nominees are confirmed—a process that will take weeks or months—the Republicans will secure a 3-2 majority.

A Republican majority does not necessarily mean Dartmouth players would lose at the board level. However, the risk of a loss is higher. A loss, in turn, would stymie other college athletes from seeking employment recognition and unionization. 

A related risk is the uncertain viability of an appeal by the Dartmouth players of an adverse board decision. Federal law generally does not permit unions to seek appellate review of NLRB representation decisions. In other words, if the board finds the union does not represent the players, especially without substantively addressing the legal question of whether the players are employees within the meaning of the NLRA, the matter would likely end there.

However, an appeal to federal court of appeals (either the First Circuit in Boston or the D.C. Circuit) could still be attempted on the statutory question of application of the NLRA to the players—interestingly, in voting to grant a stay, Kaplan wrote it would “allow the Board to decide” whether college athletes who do not receive athletic scholarships “should be considered employees under the [NLRA].” Yet that process would have been less certain. 

In August, the players filed a separate unfair labor practices charge against Dartmouth over the school’s refusal to bargain. If the players continued their representation effort and the board denied it, the new general counsel could pull the ULP on grounds the union matter was rendered moot by an adverse agency decision on representation. But agency actions on ULP’s are generally appealable under the NLRA and the Administrative Procedure Act. The players could have gambled that, with new U.S. Supreme Court precedent instructing courts to give less deference to agencies, a court would take an appeal on the ULP even if the NLRB rejected the representation petition. Still, it would have been a high-stakes wager with differing legal opinions on whether it would work.

By making the request to withdraw while Abruzzo is still in place, the union believes it is likely the NLRB will grant it. If the union waited until after Jan. 20, there is concern the request would be denied so that the agency could then reject the union and create precedent.

The players have seen their (and other Dartmouth athletes’) school health care benefits improve while they have been a bargaining unit. They could still file a lawsuit seeking backpay and other compensation associated with the Fair Labor Standards Act and accompanying state laws on grounds they have been recognized as employees. However, that would necessitate a new legal action and is unlikely to happen. Their efforts are instead expected to focus on developing the Ivy League Players’ Association as a vehicle to negotiate group licensing deals on behalf of Ivy league athletes on a conference-wide level. 

Tuesday’s development means that the February 2024 decision by NLRB regional director Laura Sacks that the Dartmouth players were employees within the meaning of the NLRA will remain citable authority for others who seek employment recognition; the accompanying union effort ending does not change that. Her decision is persuasive authority, meaning its reasoning can be followed although is not required to be followed.

Sacks fully endorsed the legal reasoning and arguments offered by the players’ attorney, Jake Krupski. She reasoned the players perform work in exchange for compensation (including preferred admissions into an elite university, per diem, clothing, sneakers, etc.) and the school has the right to control that work. The players then made history by voting to become the first unionized college athletes in history. Dartmouth objected and argued, among other things, that athletics is part of the educational program and that college athletes have not traditionally been viewed as employees. The school refused to bargain with the players’ union and had petitioned the agency’s board for review. 

In a statement shared with Sportico, Local 560 president Chris Peck confirmed the request to withdraw. He said by filing the request at this time, “we seek to preserve the precedent set by this exceptional group of young people on the men’s varsity basketball team.” Peck stressed how the players “pushed the conversation on employment and collective bargaining in college sports forward and made history by being classified as employees, winning their union election 13-2, and becoming the first certified bargaining unit of college athletes in the country.” He added that the union will continue to advocate for “just compensation, adequate health coverage, and safe working conditions for varsity athletes at Dartmouth” and “double down on our support for an Ivy League Players Association, expand our group licensing program, and continue to seek legal and administrative avenues to preserve and expand the rights of college athletes”

Peck criticized Dartmouth College for “refusing to bargain” which he argues violates “their own Code of Ethical Business Conduct.” He also warned “the NCAA and Dartmouth still face an uphill battle for a special antitrust exemption from Congress, leaving collective bargaining as the only viable pathway to address issues like the transfer portal, eligibility rules, and NIL payments.”

Other legal actions could still lead to college athletes’ recognition as employees and potential unionization. NLRB administrative law judge Eleanor Laws will issue a ruling on whether USC football and men’s and women’s basketball are employees within the meaning of the NLRA of their school, the Pac-12 and the NCAA. Her decision could be appealed to the board and later the courts, though the same set of concerns detailed above could potentially lead to the withdrawal request of that matter. 

In addition, a federal court in Pennsylvania is considering Johnson v. NCAA, where college athletes argue they are employees under the FLSA. In July, the U.S. Court of Appeals for the Third Circuit issued a favorable opinion on the plaintiffs’ case. Johnson will be decided in the courts, not at the NLRB.

There’s also the possibility that a college or, more plausibly, a conference could buck their NCAA membership agreement and recognize college athletes as employees. Employment could be used to contractually keep players at a school—and away from the transfer portal—and provide coaches with contractual authority to discipline and control players as the coach sees fit. Of course, such a move could invite potential expulsion from, or litigation with, the NCAA.

Whether or not college athletes are classified as employees and form unions, college sports is inarguably moving in a commercialization direction. More and more judges are expressing hostility toward rules designed to limit athletes’ economic opportunities. This is apparent with the rise of NIL and NIL collectives, recent court decisions involving the transfer portal, NIL collectives and Vanderbilt quarterback Diego Pavia’s eligibility, and the pending NCAA settlement in the House, Carter and Hubbard antitrust litigations that would allow colleges to directly pay players under a salary-cap like model. 

Although the Dartmouth matter will no longer make college athletes employees, it will be remembered as playing a historic role in how that topic is ultimately resolved.