SEIU Lays Claim to Dartmouth Basketball in Unionization Push

On Wednesday, the Service Employees International Union, Local 560 of Concord, N.H., filed a petition with the National Labor Relations Board for the recognition of 15 men’s basketball players at Dartmouth College as a union.

The petition will take time to play out and is subject to litigation in federal courts, particularly since whether the basketball players are employees (a perquisite to forming a union) is itself subject to dispute. However, it reflects the latest step in a larger movement for Division I college athletes to become classified as employees of their colleges and possibly also their conferences and the NCAA.

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The case has been assigned to the NLRB’s regional office in Boston, Mass., which is directed by Laura Sacks. She and her staff oversee elections, investigate unfair labor practice charges and protect the rights of workers to collectively bargain their employment with employers.

It is the first NCAA petition the agency has received since NLRB General Counsel Jennifer Abruzzo issued a memo in September of 2021, providing her opinion about the statutory protections of college athletes under the National Labor Relations Act, which the NLRB enforces.

The Boston regional office will now review the petition, which will include a fact-finding investigation and a possible hearing. A decision by the regional office could be appealed to the NLRB’s national board and federal courts. From start to finish, the legal process could take several years. Nevertheless, it immediately adds another jolt to the compounding forces pushing for college athletes to be recognized as employees of the schools they compete for.

“We have the utmost respect for our students and for unions generally,” a Dartmouth spokesperson told Sportico in a statement. “We are carefully considering this petition with the aim of responding promptly yet thoughtfully in accordance with Dartmouth’s educational mission and priorities.”

Arguments for the recognition of college athletes’ employee state are, by now, well-traveled territory: Under the federal law definition of employee, D-I college athletes meet many of the elements.

Those athletes report spending more than 40 hours per week on team-related activities—despite NCAA rules limiting those hours below that level. Their relationship to their university, including which courses they can take and their access to facilities, is governed by team considerations. They travel for their team and must miss classes. At some D-I schools (though not Dartmouth), the athletes are used to generate sizable revenues that benefit their schools, coaches and others.

Dartmouth players follow in the footsteps of Northwestern football players who attempted to unionize in 2014. They initially won support from Peter Ohr, then the NLRB’s Chicago regional director. But the NLRB’s national board unanimously rejected their petition, noting that the board is charged with promoting “establishing in labor relations” and that college athletes at private colleges being employees could undermine that goal. After Northwestern’s failed unionization push, some wondered if a smaller-roster sport, like basketball, would have an easier time in a future attempt.

Like Northwestern, Dartmouth is a private college. The rest of the Ivy League is private as well, though Cornell University has some programs operated under contract with New York state. The NLRA, however, does not govern the relationship between public universities and their workers; that is a question of state labor law and state labor boards, which vary widely across the 50 states, with some “labor friendly” and others “management friendly.”

In other words, the recognition of private college athletes as employees would not grant employee status to athletes at public colleges.

Even if Dartmouth men’s basketball players are employees, that might not make it true for some other D-I schools. Ivy League schools have agreed to not offer athletic scholarships (a topic at issue in an on-going antitrust litigation), while basketball players at D-I colleges are “paid” in a sense via athletic scholarships. Whether an athletic scholarship changes the calculus of employee recognition is unclear and could itself become a source of litigation.

By pursuing unionization, the Dartmouth men’s basketball players make it more difficult for their university to simply cut the team. It’s been speculated that if college athletes are deemed employees, some schools will fear the economic ramifications and then cut teams and convert them into club sports. Labor law would complicate the process of severing teams, given that the school would not just be a school—it would also be a would-be employer.

Dartmouth has an established tradition with student workers as union members. The Student Worker Collective at Dartmouth is a union for students who work in dining services. The union says it is wants to ensure “every community member who labors for Dartmouth has a say in its governance.” Dartmouth is a sensible place for a sports team to pursue unionization in the same vein as their classmates, and it’s not clear that the university—with its tradition of recognizing student labor and open-minded response to Wednesday’s filing—will necessarily push back to stop it.

The move by Dartmouth players arrives as other legal efforts gain momentum in recognizing college athletes as employees.

The U.S. Court of Appeals for the Third Circuit is currently considering Johnson v. NCAA, where college athletes argue they are employees in the same vein as their work-study classmates, who are owed minimum wage and overtime pay consistent with the Fair Labor Standards Act. The Johnson plaintiffs point out the arguable incongruity of their student worker classmates (some of whom are also on scholarship) being paid to work in concessions and at the ticket booth of their games while the athletes in those games aren’t paid.

Meanwhile, in California, an NLRB administrative law judge will hold a hearing in November to determine if USC, the Pac-12 and the NCAA are joint employers of Trojans football and men’s and women’s basketball players.

“This is another step in the right direction,” said Ramogi Huma, executive director of the National College Players Association, which is behind the USC effort but not involved with Dartmouth. “There are now multiple promising efforts to affirm college football and basketball players’ employees status.”

Michael Hsu, a former University of Minnesota regent who filed an unfair labor practice charge on behalf of all NCAA college athletes, cheered the Dartmouth athletes for being the first players to actively take up the unionizing push since Northwestern’s football team.

Hsu previously told Sportico of his difficulties in finding athletes to carry the mantle, which prompted him to do so under the name of his advocacy group, the College Basketball Players Association, in November of 2021.

“The advocates had to educate the athletes,” Hsu said Thursday. “It has just taken a long time for them with all the other events in the athletic world.”

With conferences morphing into national entities where athletes will be expected to frequently travel across the country to play games as part of billion-dollar TV deals, the argument against employee recognition faces more hurdles. That said, Dartmouth basketball is not in the same category and might land in a different place under labor law.

Dartmouth has been a hotbed of labor activity of late, with the school’s library workers, graduate students, visitor center employers and dining service workers all having voted to unionize since last February.

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