Dartmouth Men’s Basketball Team Makes History as First College Team to Vote to Unionize

By Nefertari Elshiekh

On March 5th, Dartmouth’s men’s basketball team voted 13-2 to become the first college sports team to unionize–a historic step toward recognizing college athletes as employees. However, their legal battle is far from over.

National Relations Labor Board (“NLRB”) Regional Director Laura A. Sacks found that Dartmouth athletes are employees under the National Labor Relations Act (“NLRA”) because of the compensation they receive, which comes in the form of preferential admissions to the school, basketball shoes they receive each season (totaling $1,200 in value), and the tickets they are given each game. In exchange, the players play for Dartmouth, who is able to control them, making them employees. The NLRB recognition of the players as employees allowed the team to hold a vote on whether they wanted to unionize.

The team’s successful unionization makes history in collegiate sports, but their effort does not mark the first-time college students have unionized nor the first-time a college sports team has attempted to unionize. Student workers at Dartmouth Dining Services are part of a union as are graduate student workers. Dartmouth tried to argue the players are not employees because the team is unprofitable, but Dartmouth Dining Services, which hires unionized students, also does not generate profit. Ms. Sacks made clear that employee status does not turn on the profitability of a venture. Instead, employee status requires only that the players be compensated for the work they do for Dartmouth and that Dartmouth control that work. Players often devote over 40 hours a week to their sport, schedule their courses around their team schedule, and interact with potential donors. In return, their work benefits the school through publicity and increasing alumni donations.

Unionization efforts at Dartmouth leading up to the basketball team’s attempts were spurred by the COVID-19 pandemic. Dining services students needed to work, even as the pandemic continued, but they were nervous about contracting the coronavirus. This ultimately led to unionization and sick pay for the student workers. Cade Haskins, a junior on the basketball team, who also worked in the dining hall, saw these efforts happening in real time.

Similar unionization efforts in collegiate sports failed because of the difference in composition of athletic conferences. In 2014, Northwestern’s football team tried to unionize. The Chicago Regional Director of the NLRB determined that the players were employees, but the school appealed to the agency’s board, who unanimously voted in favor of the school. Classifying Northwestern players as employees was challenging because of the distinction between public and private universities. The NLRA only governs private employers, whereas public employees are governed by state law. This means private universities, like Dartmouth and Northwestern, are governed by the NLRA. However, Northwestern is the only private university in its athletic conference, the Big Ten. The NLRB was uncomfortable with classifying members of Northwestern’s football team as employees while similarly situated students at other schools in the Big Ten stayed as non-employees. Dartmouth is distinct from Northwestern because the Ivy League consists of all private schools governed by the NLRA. Additionally, in the Northwestern case, the NLRB did not say the players were not employees, leaving the door open to re-evaluate the issue in future cases. This also explains why such a unionization move is coming from a school like Dartmouth as opposed to one of the “big-money football programs,” like LSU or Alabama, because they are public universities.

There is another college sports unionization effort happening across the country. The NLRB is currently hearing a case over whether the University of Southern California’s football and basketball players are employees. This case is unique because the National Collegiate Players Association is suing USC, the Pac-12, and the NCAA as joint employers. As a result, public schools could be included in the ruling, unlike the Dartmouth ruling, which is likely to be limited to private schools.

Additionally, since Northwestern’s attempt in 2014, the General Counsel for the NLRB changed. The current General Counsel expressed in 2021 that she thought college athletes were employees, inviting these cases to come before the NLRB.

This all comes as the NCAA’s amateurism model, which embraces the premise that college athletes cannot be paid, is deteriorating. College athletes may now profit from their name, image, and likeness (NIL) and NCAA v. Alston, which held that the NCAA is not allowed to restrict education-related benefits to student athletes, was decided by the Supreme Court in 2021.

Following the NLRB’s decision that the players are employees, Dartmouth appealed the decision to the agency’s full board. Dartmouth contends this decision is an “unprecedented, unwarranted, and unsupported departure” from its prior determinations and expressed concerns that unionizing could result in the basketball team’s removal from the Ivy League or the NCAA. Dartmouth emphasizes that for athletes, academics remain the primary focus, and thus, these students should not be classified as employees merely because they play basketball. Dartmouth also argues that the courts have rejected recognition of college athletes as employees in cases like Dawson v. NCAA and Berger v. NCAA. However, the NLRB is not bound by decisions in federal courts.

While this is a significant win for Dartmouth’s basketball team, the fight is far from over. Dartmouth could challenge the decision in a U.S. Court of Appeal and the case could even make it up to the Supreme Court. Even if the courts affirm the decision, this could delay negotiations between Dartmouth and the players. Dartmouth could also stall negotiations or propose unattractive terms as a way to resist the decision. Right now, the top priority for the team is negotiating for the school to provide health insurance, so they won’t have to pay for the injuries they sustain while playing. Dartmouth may also have to pay wages, employer taxes, and workers’ compensation insurance. Though unlikely, Dartmouth could eliminate the basketball team entirely. However, the team would likely argue this is retaliation and evidence of the school engaging in unfair labor practices. The players hope to form an Ivy League Players Association, which would consist of other Dartmouth sports teams as well as sports teams from other schools in the Ivy League.

Even though NLRB’s decision only extends to private institutions, pay-for-play at private schools could create a recruiting imbalance that would force public schools to also pay their players. This could ultimately lead to the collapse of NCAA’s amateur model. In fact, following this decision and vote, the House of Representatives Health, Employment, Labor and Pensions; Higher Education and Workforce Development joint subcommittee had a hearing on March 12th on “Safeguarding Student-Athletes from N.L.R.B Misclassification.”

Mary Kay Henry, President of Service Employees International Union said, “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.”