Dartmouth Basketball Team Votes to Unionize in College Sports First
Dartmouth College is one of the oldest colleges in America, but its men’s basketball players Tuesday moved college sports into a new generation.
Players voted 13-2 to recognize Service Employees International Union Local 560 as representing them in a union, with all team members casting a vote. It is the first time college athletes have unionized.
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The election took place on Dartmouth’s campus in Hanover, N.H., under supervision of NLRB officials. The vote followed the NLRB declining to act on a motion by Dartmouth to postpone the election.
Once the vote is certified, which could come as soon as next week, Dartmouth will then have 10 business days to file an appeal to the national NLRB, after which the basketball players will have a chance to respond. If Dartmouth fails to have the national NLRB overturn the union bid, it can then appeal the matter in federal court.
“It’s time for the age of amateurism to end,” Dartmouth basketball player representatives Cade Haskins and Romeo Myrthil said in a statement released just prior to the vote taking place. “We call on the Dartmouth Board of Trustees and President Beilock to live the truth of her own words and cultivate ‘brave spaces’ in which ‘changing one’s mind based on new evidence is a good thing.’”
While college athletes unionizing is a major moment in sports law, college students unionizing as school employees is nothing new. Some of the Dartmouth players’ classmates are unionized employees in dining services and negotiate terms of employment with the school. The SEIU applauded the players’ choice.
“These young men will go down as one of the greatest basketball teams in all of history,” Mary Kay Henry, international president of SEIU, said in a statement. “The Ivy League is where the whole scandalous model of nearly free labor in college sports was born and that is where it is going to die.” Dartmouth is 5-21 overall this season and 1-11 in the Ivy League; the team closes its schedule against Harvard on Tuesday night.
The University said it disagrees with the vote while stressing the academic nature of its mission. “For Ivy League students who are varsity athletes, academics are of primary importance, and athletic pursuit is part of the educational experience,” a university spokesperson said in a statement. “Classifying these students as employees simply because they play basketball is as unprecedented as it is inaccurate. We, therefore, do not believe unionization is appropriate.”
Unless the NLRB grants a stay pending Dartmouth’s appeal to the agency’s board, the school will soon need to bargain in good faith with the players’ union on mandatory subjects of employment. Those subjects include wages, hours and other conditions—such as procedures for disciplining players, safety requirements, support services, insurance and health care.
Dartmouth athletics could be deemed ineligible under NCAA and Ivy League rules limiting how schools compensate athletes, though it would depend on the negotiated terms. For example, if Dartmouth and the players’ union agree to cap hours to 20 a week, that would fall in line with the NCAA’s general limit for “countable athletically related activities.”
Dartmouth has raised other concerns about unionizing, including potential adverse impacts on foreign players who are enrolled through visas. On the other hand, those players as employees might remain in compliance with visa restrictions, including because they could be recognized as joint employees of the conference and NCAA.
Some have speculated Dartmouth will simply cut the basketball team instead of negotiating with the players. That is an unlikely move, since the players would then argue the school has committed unfair labor practices by retaliating and refusing to bargain.
The vote occurs while the NCAA and its system of amateurism face an array of legal challenges. The NCAA is being forced to lift restrictions on colleges to compensate athletes and move college sports closer to a free market akin to pro sports. These challenges also threaten the NCAA and its members with potentially billions of dollars in damages reflecting unpaid player wages, unshared broadcasting revenues, forgone NIL deals and unmade video games.
Dartmouth is an unlikely place to push college sports into a world where athletes are employees. The school claims the Big Green consistently loses money. Dartmouth is not exactly a pipeline to the NBA. And Ivy League athletes don’t receive athletic scholarships.
But as SEIU 560 attorney John Krupski argued in a hearing last fall and as NLRB regional director Laura Sacks wrote in her Feb. 5 order, the players are employees within the meaning of the National Labor Relations Act because of what counts under the law. At issue: Dartmouth’s capacity to control the players and players playing in exchange for compensation, including via preferential admissions to the elite college and access to training facilities.
Dartmouth on Tuesday appealed Sacks’ Feb. 5 order through a 58-page request for review. The school contends Sacks misapplied the law and rendered a decision with an incomplete factual record. Last Friday Sacks rejected Dartmouth’s motion to reopen the case, which, had it been granted, would have delayed the vote.
The appeal will be heard by the agency’s five-member board, which currently has one vacancy. There is no timetable on how long the board will take to decide, but no decision is expected for months. When Northwestern University appealed a regional director’s finding in 2014 that the football players were employees, the board took about 16 months before issuing a decision. A board decision can be challenged in a U.S. Court of Appeal and eventually the U.S. Supreme Court, meaning the total review process for Dartmouth could last several years.
One factor in favor of the Dartmouth players is the Ivy League consists of all private colleges. These eight colleges are subject to the NLRA, which governs private employers. Employment at public colleges, in contrast, is governed by state laws. Northwestern football players fell short partly because the NLRB was uncomfortable with the prospect of Wildcats players being employees while athletes at other Big Ten schools–all of which are public–remain non-employees.
If Dartmouth players are employees, the same would likely be found should players at other Ivy League schools petition for employment recognition. To facilitate that process, an Ivy League Players Association is expected to form that would help represent players at other Ivy schools become employees and unionize.
In addition to Dartmouth’s men’s basketball team, there are several other related NLRB cases occurring, including an ongoing administrative law hearing against USC, the Pac-12 and the NCAA, which are collectively accused of misclassifying Trojans football and basketball players as “student-athletes.” That unfair labor practice case is taking place before an NLRB administrative law judge in Los Angeles. Meanwhile, the labor agencies regional offices in Chicago and Indianapolis are investigating separate charges filed by the College Basketball Players Association against Northwestern University and the NCAA.
It’s possible athletes at other private colleges will similarly petition for employment recognition and unionization. If Dartmouth players are employees because of a combination of school control and playing in exchange for compensation, the same could be true of other athletes. As to athletes at public universities, they are in a different situation. Their ability to gain employment recognition would depend on state laws, with some states making employment status and especially unionization more difficult.
As for the Dartmouth players, they close out the season tonight by hosting the Harvard Crimson at Edward Leede Arena. Tipoff is at 7 pm.
(This story has been updated with details of the appeals process in the third paragraph and a statement from Dartmouth in the eighth paragraph.)
—With assistance from Daniel Libit.
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