Ten Key Issues for Dartmouth Men’s Basketball Moving Forward

HANOVER, N.H. — Dartmouth College men’s basketball team finished the 2023-24 season Tuesday with a 6-21 record on the court, but the team is 1-0 as a team of unionized employees.

Hours after the 15 players voted 13-2 in favor of union representation by SEIU Local 560, the Big Green defeated NCAA president Charlie Baker’s alma mater, the Harvard Crimson (14-13), 76-69, at Edward Leede Arena. SEIU Local 560 covered the cost of tickets for all union members and supporters as part of “Big Green Union Night.”

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As the players, coaches and fans celebrated the victory, the future of the Dartmouth basketball players’ union has begun to come into focus. Here are 10 things to watch as that future unfolds.

1. The Vote Was a Landslide

The union representation vote required a majority, and the vote was 87% in favor, which stands out because union representation votes tend to be more closely contested. They also frequently do not feature all eligible voters casting a ballot.

The overwhelming vote signals the players are largely unified and that Dartmouth’s efforts to persuade the players to vote no—such as warning the team could be deemed ineligible by the NCAA or suggesting international players will run afoul of their F-1 visas—failed. Likewise, to the extent parents and friends urged the players to vote no, the players weren’t persuaded.

2. Dartmouth Can Try to Postpone Bargaining With the Union

Dartmouth is expected to seek a stay (postponement) from the NLRB. If granted, this would relieve the school of the obligation to bargain until after the agency’s board decides on the school’s request for review, the NLRB’s term of art for an appeal. The appeal, filed immediately after Tuesday’s vote, triggers a process that will likely take months, and possibly over a year.

As of this writing, Dartmouth has not requested a stay of the election result, but the school could make the request as soon as this week—after the union is officially certified. Dartmouth could point out that after Chicago-based NLRB regional director Peter Sung Ohr found that Northwestern football players were employees in 2014, Northwestern was granted a stay pending the appeal. Sixteen months later, the NLRB’s board sided with Northwestern, which never conducted employment negotiations with the players.

The college also has the right to file objections to the election by March 12. Any objections would be reviewed by NLRB regional director Laura Sacks, who could order a hearing or dismiss the objections. Objections could involve an allegation the union somehow pressured the players into voting yes or created fear of reprisals.

Dartmouth would need to support such an accusation with evidence. If instead the school raises an objection as more of a “shot in the dark,” perhaps to delay when it must bargain with the players, the school could undermine its credibility with the NLRB.

3. Absent a Delay, Dartmouth Must Bargain in Good Faith

Unless granted a stay or new election, Dartmouth will be required to bargain in good faith with the players’ union on mandatory subjects of employment: wages, hours, insurance, health care, disciplinary procedures and support services. If Dartmouth refused to bargain, the union could file unfair labor practice charges with the NLRB.

4. Players Won More Than One Round This Week

On Tuesday, the NLRB board in D.C. denied Dartmouth’s motion to stay the election, shooting down the college’s argument that a delay was necessary because Sacks erred in finding the players are employees. The 3-1 decision (there is one vacancy on the five-member board) rejected the school’s argument. The three board members voting against Dartmouth were former MLBPA general counsel David Prouty, Gwynne Wilcox and chair Lauren McFerran, all of whom were appointed by Democratic presidents.

The lone vote for Dartmouth was Marvin Kaplan, whom President Donald Trump appointed. Kaplan wrote Sacks’ decision was “unprecedented,” since the NLRB has never recognized college athletes who do not receive athletic scholarships as employees. He worried Tuesday’s election might be invalid until there is further review.

Although the board wasn’t considering the merits of Sacks’ decision—that is what the longer appeal will involve—it’s telling that while Kaplan signaled opposition to the players, the other three did not.

5. Dartmouth Pays Student Employees (Even for Unprofitable Jobs)

Many have questioned why Dartmouth would employ the basketball players when the school says the team has lost money the last five years. There are several reasons.

First, the players dispute the team has lost money. The school’s accounting doesn’t include the impact the team has on fundraising, admissions and marketing efforts for the school, revenues generated by an ESPN broadcast contract or potential distributions from the March Madness tournament. The school’s accounting also reflects school, not player, decisions on how much to pay the coaches and charge for tickets.

Second, Dartmouth has paid other student employees who work in unprofitable ventures. The school has lost money over the last three years in dining services, which employs unionized students, but has agreed to raise the wages of those student employees to $21 an hour. The Dartmouth players would be paid at least the campus minimum wage for student employees: $16.25/hour, more than twice the federal and New Hampshire minimum hourly wage of $7.25.

Third, and most important, employment status doesn’t hinge on an employer’s profitability. Amazon reported a $2.2 billion loss in 2022, but that didn’t convert its employees into unpaid interns.

Dartmouth Men's Basketball
Dartmouth’s men’s basketball team closed out its season with a win against Harvard Tuesday night.

6. Big Time Higher Ed Beats Big Time NCAA Sports

One critique of the Dartmouth players unionizing is that they play in an unheralded program in a conference—the Ivy League—not regarded as an NBA developmental league. Dartmouth has produced just six NBA players in the program’s history. By contrast, the University of Kentucky, has 28 alumni in the NBA this season.

Why won’t Dartmouth just cut its low-profile basketball team? And how is it possible Big Green players are employees before those on the Wildcats?

The legal answer is easy. If Dartmouth shuts down the basketball team, the union will file unfair labor practice charges for retaliation and refusal to bargain. As Sportico recently explained, labor law frowns upon partial closings (such as cutting one team to avoid bargaining with them). As to timing, Dartmouth players moved to form a union under the National Labor Relations Act, a federal law that governs private colleges, and succeeded. Kentucky players have not taken a similar step, because Kentucky is a public university not covered by the NLRA; the Wildcats would have to unionize under state labor law.

The business answer is more interesting. Dartmouth, as mentioned above, likely views the basketball team as more valuable than what the accounting books indicate because of its impact on fundraising, admissions and marketing.

Even without that impact, Dartmouth, like other Ivy League schools, is well positioned to absorb 15 new employees at $16.25/hour. Dartmouth has an endowment of approximately $8 billion, supporting a school with an undergraduate enrollment of about 4,500 students. In comparison, Kentucky’s endowment is $2.1 billion, and the school has about 22,700 undergrads. By all metrics, Dartmouth is in excellent financial shape, with a global brand few schools can match.

The same is true of the Ivy League in general. As of last year, the combined endowments of the eight Ivy League schools totaled about $185 billion. Those schools feature extremely selective admissions policies, are well-known throughout the world (unlike most U.S. colleges, including those with large college sports programs) and produce graduates who often do well financially. It’s a core reason why Ivy League admission is so coveted in the first place.

The Ivy League might not have elite-level athletics, but its schools are unlikely to cut athletics in response to paying their own students minimum wage.

7. NCAA’s Anti-Employment Wall May Collapse, a la NIL

The NCAA is adamantly opposed to the recognition of college athletes as employees, saying employment recognition betrays the student-athlete model and the spirit of amateurism. Recall the NCAA adopted a similar mindset with name, image and likeness. The NCAA went to court against Ed O’Bannon and opposed state NIL initiatives, claiming that athletes using their right of publicity (which they already had as Americans) would harmfully commercialize college sports.

When the NCAA realized it could not stop NIL, it pivoted to embrace it. The mechanics were easy: All the NCAA had to do was change its rules. NIL has now been a feature of college sports since 2021 and has not damaged the popularity with fans—if anything, college sports are more popular than ever.

The same phenomenon could happen with college athlete employment and unionization. After a string of legal defeats in recent years, the NCAA could recognize the law appears to be on the side of the players. The NCAA created the principle of student-athletes and has adhered to amateurism long after most other sports bodies rejected it, but could pivot to permit employment and unionization.

8. The Union’s Decertification Card

If the NCAA disqualifies Dartmouth for paying players, or if Dartmouth refuses to pay players on account of NCAA membership rules, Dartmouth players could respond through the NLRB. But they have other legal options, as well.

The big weapon is antitrust litigation—the most threatening area of sports law, since the cases tend to last years, can be certified as class actions and lead to trebled damages. The NCAA is familiar with this risk—it could be forced to pay more than $4 billion in damages if it loses In Re College Athlete NIL Litigation (a.k.a. House v. NCAA).

When unions and management are in a bargaining relationship, antitrust litigation is off the table under what’s known as the non-statutory labor exemption. But when there is an impasse in the bargaining, players in a union can decertify and sue the league—and its teams—on antitrust grounds. The antitrust argument is that teams are competing businesses, and when they join hands to restrict player compensation, they run afoul of the law. Salary caps, maximum salaries and the draft are all susceptible to antitrust challenge when not collectively bargained. NFL and NBA players have used this approach against their leagues.

Here, Dartmouth players could decertify and then sue Dartmouth, the Ivy League, the NCAA and their members, arguing that rules limiting player compensation are illegal and a product of collusion. Dartmouth players could seek a restraining order as part of a lawsuit, too.

The NCAA and Ivy League are already dealing with similar litigation. In Carter v. NCAA, the NCAA and Power Five conferences are accused of violating antitrust law by barring players from being paid their market value. In Choh v. Penn, the Ivy League and its schools are accused of violating antitrust law by denying athletic scholarships.

9. Players Could Lay Claim to the Entirety of Their NIL

The Dartmouth players could argue they control their NIL, and claim that the school can’t license broadcasts of their games unless the players receive a share of broadcasting revenue (an argument in House v. NCAA). As a union, the players could also seek group licensing opportunities for their NIL. To the extent Dartmouth, the Ivy League or the NCAA attempted to block the players, the player could raise claims under a bevy of laws covering antitrust, NIL and intellectual property.

10. Dartmouth Could Buck the NCAA to Negotiate With Payers

Like its basketball players, Dartmouth is in a unique and powerful position to change college sports as a member of the NCAA, whose rules are under legal fire. Right now, though, the college faces a potential conundrum: If Dartmouth ends up with a legal obligation bargain with the players union, it will violate labor law by not negotiating. But if it does negotiate, it could face disqualification by the NCAA and Ivy League.

In that scenario, it’s hard to imagine Dartmouth flouting the law to follow NCAA and Ivy membership rules, which may be illegal. In fact, Dartmouth could turn around and sue the NCAA and Ivy League for disqualifying the school based on illegal rules.

Dartmouth is also not averse to cutting deals to move forward. Last month the school, along with Rice, Northwestern and Vanderbilt, agreed to $166 million settlement to resolve an antitrust lawsuit in which the schools were accused of conspiring to limit financial aid.

Dartmouth’s president, Sian Beilock, is also an advocate of civil conversations, open dialogue and finding solutions. She may not want to join the NCAA on what looks like a losing crusade, and one which could force the school to pay exorbitant legal fees. It might be easier to pay 15 basketball players a modest hourly wage in line with what the school pays other student employees.

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