Dartmouth's men's basketball players vote in favor of forming union
Dartmouth’s men’s basketball players voted 13-2 on Tuesday in favor of forming a union, marking a historic next step as college sports incrementally moves toward ushering in an employee model for some athletes.
For collective bargaining purposes, all eligible men’s basketball players will be represented by Service Employees International Union Local 560. Also on Tuesday, Dartmouth filed its formal request for review with the full National Labor Relations Board of the regional director’s Feb. 5 ruling that the athletes are employees of the college.
If necessary, the school can also appeal to federal courts, meaning it could be a lengthy period before players can negotiate a collective bargaining agreement with the school.
Nonetheless, Tuesday’s union election represented another landmark moment during a period of unprecedented disruption in college sports. It comes one month after regional director Laura Sacks’ 26-page ruling rocked the college athletics world.
“It’s time for the age of amateurism to end,” Dartmouth teammates Cade Haskins and Romeo Myrthil said in a statement.
A growing number of industry leaders have believed college athletics has been on a slow march toward at least some athletes being deemed employees of their colleges. It’s been more than two years since NLRB General Counsel Jennifer Abruzzo issued her memorable September 2021 memo in which she said “certain players at academic institutions are statutory employees who have the right to act collectively to improve their terms and conditions of employment.”
In a statement released immediately after the vote, Dartmouth said in part: “The students on the men’s basketball team are not in any way employed by Dartmouth. For Ivy League students who are varsity athletes, academics are of primary importance, and athletic pursuit is part of the educational experience.
“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.”
In terms of what’s next, the parties have five business days to file objections to the election. If no objections are filed, the union will be certified as the workers’ bargaining representative. If objections are filed, the regional director will decide whether they warrant a hearing or whether to dismiss them and certify the election.
After the result is certified, the parties have 10 business days to file a request for review of the regional director’s ruling with the NLRB. The other party can then file their response to the appeal. If filed, the Board will review the testimony and evidence presented in the representation hearing, along with the regional director’s decision and then rule on the case.
If the Board rules that the players are employees and Dartmouth refuses to bargain with the union, the decision could be appealed to a federal appeals court and ultimately the U.S. Supreme Court.
Employee model carries significant implications
An employee model is poised to radically reimagine the college sports paradigm.
It is expected to usher in collective bargaining for some athletes, who will for the first time be able to negotiate compensation, health and welfare benefits and other terms and conditions. Many cash-strapped schools are girding for potentially needing to cut sports, reduce them to club level or move to a lower division if and when an employee model arrives at their campus.
The NCAA and particularly its president, Charlie Baker, have steadfastly opposed an employment model. They continue to aggressively lobby federal lawmakers for a federal reform bill that would, among other things, codify that athletes are not employees. No bill has even gone to a vote.
An NLRB spokesperson told On3 on Friday that if the majority of voters chose union representation Tuesday, then the union would represent all of the voters in the bargaining unit: All basketball players on the men’s varsity basketball team employed at Dartmouth.
On Feb. 5, Sacks in her ruling concluded: “Because Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team, and the players perform that work in exchange for compensation, I find that the petitioned-for basketball players are employees within the meaning of the [National Labor Relations] Act.”
Dartmouth has fought to reopen case
Last Thursday, Dartmouth filed a motion seeking to introduce new evidence in the case. Sacks denied that request.
In a subsequent motion to exceed the written page limit for its request for review of Sacks’ decision, Dartmouth wrote that this case carries “substantial public policy implications for the entire United States collegiate system. The resolution of this case could impact the ability for colleges and universities to comply with Title IX; the educational and athletic opportunities for athletes across the country; the participation in college athletics in the United States for international students based on Visa restrictions; and the availability of college-level athletics for women and non-revenue generating sports and/or at non-net revenue generating institutions, among many other effects.”
Control at heart of employment question
At the heart of Sacks’ decision that the athletes are college employees is the issue of control, specifically how much is exerted over players.
Dartmouth exercises “significant control over the basketball players’ work,” Sacks wrote in her ruling.
She noted that the Dartmouth Student-Athlete Handbook in many ways functions as an employee handbook, detailing mandatory tasks and regulations they must not break. Dartmouth determines when players practice and play, review film, engage with alumni or take part in team-related activities.
For road games, the college determines when and where players will travel, eat and sleep. Special permission, she noted, is required for a player to even get a haircut during a trip. Sacks wrote that no evidence exists that other members of the student body are so strictly supervised when they leave campus.
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Sacks also wrote that the “profitability of any given business does not affect the employee status of the individuals who perform work for that business.”
This is not the first time athletes set in motion a process to become employees of their school.
Dartmouth case began with a Sept. 13 petition
In 2014, an NLRB regional director also ruled that Northwestern football players were employees and ordered a union election. But when the case came before the board, the board explicitly did not decide whether the football players were employees. The reasoning: Northwestern was the only private school that competed in the Big Ten Conference. The board stated that in such a situation, asserting jurisdiction would not promote stability in labor relations due to the variety of state labor laws that would apply to football teams at state-run institutions.
As the Dartmouth ruling states, “Although the Board in Northwestern University declined to exercise jurisdiction over the players at that university, nothing in that decision precludes the finding that players at private colleges and universities are employees under the Act.”
The Dartmouth case initially attracted national headlines on Sept. 13, when a petition filed with the NLRB by the Service Employees International Union identified 15 players from Dartmouth as seeking representation. Both sides then engaged in four days of witness testimony in October during a virtual pre-election hearing.
The pre-election hearing in October offered clear, illuminating – if not somewhat predictable – arguments from both sides.
Dartmouth junior basketball player Cade Haskins laid out the conditions and school protocols that he believes should warrant the basketball players being formally deemed employees of the college.
On the other hand, one of the arguments Dartmouth’s legal team espoused was that the players there are not employees because, unlike men’s basketball programs elsewhere, the Ivy League program loses several hundred thousand dollars per year.
Dartmouth attorneys asserted that the college’s men’s basketball players are students first and athletes second.
College sports on ‘inexorable road’ to employment model
With an employment model on the horizon for at least some athletes, college sports is bracing for a new world order.
Tom Wistrcill, the Big Sky Conference commissioner, told On3 this winter that it would be “devastating” if athletes are handled like current university employees.
“Coaches would be hiring and firing them,” Wistrcill said, “plus the tax implications and union issues would be catastrophic.”
In addition to the Dartmouth case, the employment train continues to barrel down multiple tracks.
The latest chapter in the NLRB trial involving USC, the Pac-12 Conference and the NCAA concluded last week in Los Angeles. Inside an NLRB regional office, Administrative Law Judge Eleanor Laws is presiding over an all-important case that alleges the three charged parties are joint employees of USC’s football and men’s and women’s basketball players.
In addition, plaintiffs in the Johnson v. NCAA case, former Villanova football player Trey Johnson and other Division I athletes are asking that athletes be deemed employees subject to the Fair Labor Standards Act. That requires covered employees to be paid minimum wage and overtime pay, much like non-athletes at colleges who participate in work-study programs.
Tom McMillen, CEO of LEAD1 Association, has told On3 that college athletics is on an “inexorable road” toward some athletes being deemed employees of their universities.
On Tuesday, college sports moved one step closer to that reality.