The Great Trick Play: The Dartmouth College Men’s Basketball Team Votes to Unionize

Did you hear the news? The members of the Dartmouth College men’s basketball team have been deemed employees of the school and voted to unionize under federal labor law. How could you miss it? The crush of media reports has hailed it as a “historic” event, another falling domino in the inexorable collapse of the NCAA and the traditional conception of college athletes as amateurs. To be sure, the occurrence was a “never-happened-before” moment, but that alone says nothing about the practical causes and consequences of this unprecedented event.

The NLRB Clear-Out

Pundits will point to various related events or circumstances that led to this moment, such as the long-running press of antitrust litigation against the NCAA and its unforgiving amateurism requirements or the related advent of the “NIL” era, in which “amateur” college athletes can now sell their name, image, and likeness rights for money without risking NCAA eligibility. All are potentially relevant, of course, but no more so than the fact that the Dartmouth basketball team’s union campaign and vote was facilitated within the echo chamber of the current National Labor Relations Board (NLRB), the federal agency charged with enforcing federal labor law and overseeing union organizing and elections.

The current NLRB (or at least important factions within it) is indisputably on a mission to establish that student-athletes are employees of their schools and thus covered by federal labor law, including the right to unionize and bargain collectively with their “employer” schools over the terms and conditions of their employment. The first salvo was the memorandum issued in September 2021 by NLRB General Counsel Jennifer Abruzzo, which effectively announced that establishing employee status of college athletes would be a key mission of the General Counsel’s office.

Following through, in May 2023, NLRB began formal pursuit of an unfair labor practice complaint against a school, the Pac-12 Conference, and the NCAA (the “ULP Case”), alleging that through the longstanding institutional use of the phrase “student-athletes,” college athletes had been wrongfully misclassified as non-employees and were deceived or numbed into thinking incorrectly they had no right to engage in protected activity under federal labor law, including the right to organize. The ULP Case does not involve any union organizing activity by college athletes. Any win by the NLRB General Counsel (assuming it could survive NLRB Board and/or federal court scrutiny) might advance the larger principle generally but practically might only result in the eradication of the term “student-athlete” from the college sports lexicon, as schools hoping to avoid similar unfair labor practice charges might drop the term from their handbooks and recruiting brochures.

Unlike the ULP Case, the Dartmouth basketball team matter involves actual union organizing efforts by student-athletes. Before any official union vote could take place, the NLRB Regional Director supervising the union petition first had to determine whether the student-athletes were eligible to vote for a union, that is, whether they were actually Dartmouth employees under federal labor law.

To that end, the Regional Director ultimately ordered an election after endeavoring to follow NLRB precedent, which focuses on two factors: whether (i) the employer-school has the right to control the “work” (i.e., the basketball playing and training) and (ii) compensation is given in exchange for that work. The Regional Director addressed the first hurdle by citing to various indicia of control such as strict practice, playing, and fitness schedules and requirements imposed on the student-athletes.

With respect to the second hurdle, the Regional Director was challenged, as student-athletes at Ivy League schools, like Dartmouth, do not receive athletic scholarships — a complication given that, in a prior case in a different NLRB Region, college football players with scholarships met the requisite compensation requirement for employee status while non-scholarship, walk-on players did not. In the Dartmouth case, the Regional Director sidestepped the problem, concluding that the basketball players received the requisite compensation in the form of free athletic equipment and apparel, tickets, and other benefits that non-athletes at the school did not receive.

With the path cleared, the vote took place and history was made — but to what end?

Did the Dartmouth Basketball Team Vote to Become a Club Sport?

Many celebrating the vote have envisioned the team’s newly certified union (Local 560 of the Service Employees International Union) sitting down at the negotiating table with Dartmouth to bargain to a collective agreement over the terms and conditions of the players’ work (i.e., wages, benefits, hours, etc.), but this is (and likely always was) unrealistic.

It seems more likely that the Dartmouth men’s basketball players just voted the team into club sports status for the following reasons:

• Dartmouth recently announced that, given the unprecedented nature of the team’s case and notwithstanding the school’s long history of bargaining with unions, it was compelled to refuse to bargain with the newly certified union and trigger an unfair labor practice charge for purposes of hastening review of the “employment” issue before the full Board and, if necessary, the federal courts.

• Dartmouth’s willingness to take an unfair labor practice charge also suggests that even if it could pay its basketball players wages under a collective bargaining agreement and still participate in NCAA Division 1 competition (notwithstanding Ivy League and NCAA rules prohibiting such compensation), it most likely would not. Instead, it is entirely conceivable that Dartmouth would just shutter its Division 1 basketball program rather than pay the players wages. Whatever purpose the sport and its minimal revenues serve the school and it students, it could likely be met through a club sport program with unpaid participants. Many would protest that such a move would also be an unfair labor practice, but the law generally does not bar an employer from closing its business (even if the decision is based solely on anti-union sentiment).

Other practical realities seem likely to flow from the union vote by the Dartmouth basketball team. The players have been hailed as heroes — but maybe not so much by their Dartmouth cohorts who play other intercollegiate sports as well as student-athletes at other Ivy League schools. It is conceivable that to forestall any determination that their student-athletes are employees under federal labor law, the Ivy League schools might curtail all qualifying “compensation” to those student-athletes, i.e., no more free equipment, gear, tickets, or special services and benefits but perhaps instead an athletic department fee charged to all student-athletes to cover the cost of these items.

A Pump Fake in the Larger Landscape of College Sports

Many claim that the union vote by the Dartmouth basketball team will forever change college sports. There are many reasons to believe it will not:

• The decision that college athletes are employees under federal labor law may not survive federal court scrutiny outside the NLRB (notwithstanding the undue weight often given to the entirely gratuitous concurring opinion of a single U.S. Supreme Court Justice (Kavanaugh) in NCAA v. Alston, who called student-athletes unlawfully unpaid workers). In addition, by the time this employment question reaches the federal courts, the U.S. Supreme Court will likely have issued its decision in a currently pending case addressing the traditional deference federal courts give to federal agency interpretations of federal law as established in Chevron U.S.A., Inc. v. National Resources Defense Council, Inc. (the “Chevron” case). If the Supreme Court overrules Chevron or otherwise limits the deference courts give federal agency interpretations of federal law, it will only heighten the infirmity on appeal of any NLRB decision conferring employee status to college athletes.

• This is an election year in the U.S., and if Donald Trump wins the presidency, the change in administration will likely impact the NLRB and its enforcement priorities, and may end the agency’s push to classify college athletes as employees under federal law.

• Even in a world where college athletes could organize as employees under federal law, it seems unlikely that student-athletes will follow the lead of the Dartmouth men’s basketball team. College athletes generally are not ideal targets for organizing and do not create ideal bargaining units. They are young and more likely to focus on other concerns, including NIL opportunities. Their college careers are short, and high job turnover tends to undermine a union’s foundations and stability within a unit. Notably, four of the 15 Dartmouth players voting in the election played their last game for Dartmouth on the same day of the vote; five of the 15 are currently juniors who presumably will graduate next year.

• Today, under any potentially applicable legal standard or test that might be used to determine the employee status of college athletes, including the Regional Director’s decision in the Dartmouth case, there are factual constructs in which student-athletes would not be deemed employees, including, for example, factual scenarios where schools exercise less control over the athletes and less of their time is devoted to sports in relation to academics. Yes, even in the face of the current NLRB’s mission (and any applicable law), there is still a way to preserve college sports and the amateur/non-employee status of college athletes — a key part of the equation is whether schools are prepared to ensure that the facts on the ground meet the applicable standards.

Buzzer-Beater/Conclusion

Is it fair to say that the Dartmouth team’s vote to unionize will have no lasting impact? In certain ways, it likely will not, as detailed above. However, that does not suggest it is not meaningful. Indeed, even the idea that the Dartmouth players were voting to become a club sport is not offered in jest or to make light of their efforts. The vote itself highlights several practical truths about college sports today.

Most colleges do not “need” to operate many of the sports on offer to prospective students, and they are not likely to be willing or interested in paying students as workers to participate in them. In this context, union organizing is not likely to produce a team of paid players but would instead result, at most, in the creation of a club sport team or perhaps an intercollegiate sports team that operates more like a club sport. In this way, the Dartmouth basketball team’s union vote sends a message to schools: If you are going to treat us like professional athletes, then pay us; and if you don’t want to pay us, then reset how you operate our sport in ways that meet traditional notions of collegiate athletics and the legal standards of amateurism.

There are, however, sports for which schools do appear to have a need, i.e., programs that generate revenues that are important to the school. That said, college athletes are not employees just because the sport they play generates revenues for their school. Rather, in the intense chase for greater revenues (e.g., more lucrative conference affiliations with the biggest broadcast deals), there may be pressure to improve and professionalize athletic performance, perhaps to the point where the time and performance commitments and requirements imposed on the athletes translate into something more than an extracurricular college activity. In this context, union organizing could conceivably have a fighting chance to succeed, assuming it could actually materialize in the face of the practical obstacles addressed above.

Ultimately, across the spectrum of schools and sports (revenue generating or otherwise), the unionization of college athletes is not likely to occur simply because the Dartmouth men’s basketball team set a path or standard for others to follow. Rather, unionization is most likely to occur if and when the schools and/or conferences need it, including, for example, if college athletes in any context ever are deemed or treated like employees under federal or state wage laws and must be paid at least the minimum wage for their athletic performance and related training. In such case, schools will more likely be dealing with the “maximum” wage with recruits selling their services to the highest bidder. In this context, schools and conferences will likely then need — and actually welcome — player unions as means to establish a stable, competitively balanced economic system under the labor law, which would allow for the setting of standardized compensation and terms across teams and conferences without regard to or fear of antitrust law.

Is this the future? Maybe, but you might need to check back tomorrow, the way things are moving in college sports. In the meantime, as the future turns into history, the Dartmouth basketball team’s union vote will likely be remembered not as a game changer but rather a significant footnote, a signal of sorts that demanded reflection on the then-current status of college athletics and endeavored to force some sort of choice between professionalism and amateurism on a school-by-school, sport-by-sport basis.