In January of 2022, a group of Dartmouth students working in the school’s dining halls formed a union. Their motivation: dissatisfaction with work shifts, pay and treatment.
The school refused to recognize the group as such until the National Labor Relations Board formally certified the unionization effort a few months later. And then, after a year’s worth of failed negotiations with school attorneys and administrators, the Student Workers Collective — which the students dubbed themselves — called a boycott.
In February, on the eve of the strike, Dartmouth officials relented. The students successfully collectively bargained a significant pay increase to $21 an hour.
In a little known fact, at least one member of the Dartmouth men’s basketball team worked in the dining hall. The player or players — there were potentially more than one — were exposed to the unionization effort.
Months after the dining hall student workers collectively bargained, members of the men’s basketball team hope to do the same.
In news that leaked Thursday, Dartmouth men’s basketball players became the first college sports team to seek employment status and unionization since the Northwestern football players’ failed effort in 2015.
What players are seeking from the school remains unclear, but the expectation is that their requests will center around similar demands of those working in the dining halls: a student wage, more medical coverage and better treatment in a variety of team-related issues.
No player has spoken publicly, a potentially orchestrated movement of silence, and the university released an unrevealing statement.
The Service Employees International Union, the group in which the basketball players are seeking to join, confirmed Thursday that the players unanimously signed documents to join the union. The move directly triggered the SEIU to file the petition with the National Labor Relations Board’s regional office in Boston.
The NLRB is the independent agency that enforces U.S. labor law as it relates to collective bargaining. The SEIU, a powerful and politically connected organization, represents nearly 2 million employees over 100 occupations.
“SEIU is proud to stand in solidarity with these young people as they fight for the right to collectively bargain for a better future and blaze a path for other college athletics to follow,” SEIU international president Mary Kay Henry said in a statement.
This case is on an accelerated path. The school has a deadline, Sept. 25, to file a response to the SEIU’s petition. A hearing before the NLRB regional director is scheduled for Oct. 3. The director will determine whether to recognize the team’s employment claim and unionization effort.
If recognition is granted — which many expect — Dartmouth men’s basketball players could chart a pathway for all college athletes to unionize as employees, legal experts say.
“It’s ironic that you have billions of dollars flowing through college football and it might be Dartmouth basketball that upends the system,” said Gabe Feldman, a Tulane sports law professor and an expert on such NCAA matters.
“If the NLRB determines Dartmouth basketball players are employees, then there is a very strong argument that all private school DI athletes are employees, including walk-ons,” he continued. “The question then would be, ‘Does the NLRB determine that all athletes, public schools as well, are employees?’”
And, to think, it all began with a unionization effort from a group of student workers in the Dartmouth dining halls.
“It’s fascinating,” Feldman said. “There is another irony here. There is a popular argument that college athletes should be treated like all others on campus. This would be the ultimate example of that. If employees on campus who are students can come together and unionize, is it a leap that athletes on campus can come together and unionize?”
Caught in purgatory
The unionization effort is the latest chapter of an athletes rights movement that has generated sweeping changes to archaic NCAA policies governing athlete compensation and transfer rules. Buoyed by the Supreme Court’s NCAA v. Alston ruling in June 2021 — a 9-0 NCAA loss — America’s sentiment around athlete compensation has swung. In a poll published in August from Sportico, two-thirds of the American public is in favor of college athletes being paid.
The movement has filtered to the state level, where two years ago, a bevy of state laws ushered in the era of name, image and likeness (NIL). NIL, a concept at first intended to compensate college players for brand endorsements, has evolved into a pay-for-play system where school donors are pooling millions in an effort to recruit and retain athletes.
College athletics finds itself caught in a purgatory, forcibly having distanced itself from amateurism while it resists a full professionalism model.
There are signs that the industry is drifting closer to the latter.
Less than a year ago, the NLRB’s Los Angeles Region announced plans to pursue unfair labor practice charges against USC, the Pac-12 and the NCAA as single and joint employers of FBS football players and Division I men’s and women’s basketball players — a significant win for the National College Players Association (NCPA), the organization originally behind the complaint.
A hearing in front of an administrative law judge is expected in November, but because of a slow-moving appeals process, a final ruling could still be more than a year away.
While Dartmouth’s unionization effort is a rarity in college athletics, it is not so rare across the American landscape.
Most recently, more than 13,000 members of the United Auto Workers union began a strike. The Writers Guild of America, representing over 11,000 screenwriters, have been on strike for four months.
The Dartmouth student dining workers became, at the time, the fifth recognized undergraduate union in the country.
“From the big picture, we are seeing the rise of unions across the country,” Feldman said. “We are seeing a rise of the workers. It’s a cliche, but a rising tide lifts all boats. There is momentum across the country. It becomes much easier to sell unionization to other groups of employees when you see this wave happening.”
It’s not uncommon for the success of a larger union, such as the dining hall workers, to trigger actions from smaller groups, such as the basketball players, Feldman said.
“Union success begets more unions which often begets more success,” he said. “It’s a cycle.”
What happens now at Dartmouth?
If the NLRB regional director in Boston recognizes Dartmouth players as employees, the group will then hold an election.
Members of the team will vote to determine if a majority wishes to create or join a union — a formality in this case. That election would then need to be certified by the local NLRB chapter. In all likelihood, the NCAA and Dartmouth will file objections and appeal such a decision to the NLRB national board in Washington, D.C.
In the Northwestern case in 2015, the national board declined to recognize unionization, in part, because the NLRB only applies to private employers. Though it is a private school, Northwestern competes in the Big Ten, where, at the time, all other schools were public (the league since added USC, a private school). The NLRB ruled against jurisdiction arguing that one school having the ability to collectively bargain while others operate differently is a detriment to college sports. “The whole point is to have league-wide bargaining,” said Michael LeRoy, an Illinois law professor who has published extensive work on labor policy.
All schools in the Ivy League are private, an important difference that could help the unionization effort.
There is another difference between the Dartmouth filing and the Northwestern case, said Feldman. While Northwestern players received athletic scholarships, Ivy league schools do not offer such a benefit.
“It might be helpful to the unionization effort,” Feldman said. “They could claim, ‘We need to unionize to get better treatment in the form of athletic scholarships.’”
A timeline for a ruling is uncertain, but the Northwestern case provides a blueprint. UN players filed their petition in January of 2014 and the NLRB national board ruled in August 2015 — an 18-month period.
For the school, a simple solution could be eliminating its men’s basketball program, right? The team likely loses more than $1 million a year.
But it’s not so easy, Feldman said.
“If they are unioned, you can’t cut them. That’s part of the idea,” he said. “This is not about Dartmouth basketball players asking for millions in salary. They could be asking for greater benefits. Once you get to the collective bargaining element, it’s not as easy to terminate a player from a team.”
How does the NLRB national board feel?
Experts say it is an ideal time for athletes to be deemed employees, given the Supreme Court’s Alston ruling, the implementation of NIL, the swing in public sentiment and maybe most important, a Democratic-controlled White House and Senate.
Any decision from the NLRB regional director will be appealed to the four-person national board in Washington, DC., which for now holds a Democratic majority — a fact that is not insignificant. Liberal decision-makers would lean toward granting athletes employment rights.
“The question is, is the NLRB thinking differently today than in 2015?” LeRoy asked. “There are signs that the NLRB would treat this differently than they did Northwestern.”
In fact, two years ago, NLRB general counsel Jennifer Abruzzo encouraged entities to file unfair labor charges against the NCAA. In a memo, she deemed college athletes employees under the National Labor Relations Act, a thundering message from the agency’s lead lawyer that invited athletes and athlete advocates to bring forth petitions to unionize.
Six years after the same board denied Northwestern football players the right to unionize as employees, Abruzzo, a Joe Biden presidential appointee, cracked open a door. Dartmouth players have now swung it open.
Beyond the NLRB, there are several avenues in which athletes can be ruled employees, including a collective action suit out of Pennsylvania: Johnson vs. the NCAA. In Congress, Democratic lawmakers have in the past introduced legislation to make athletes employees, and at the state level, legislation has been introduced to either block athletes from becoming employees of their schools or to grant them that right.
“By definition, college athletes are employees under labor law,” NCPA director Ramogi Huma said in a previous interview. “They are skilled workers in their sport and are paid scholarships. They deserve the rights afforded to them under labor laws like every other American.”
How do college sports leaders feel?
The answer to that question can be found in a situation that unfolded last summer in State College, Pennsylvania.
Then-Penn State quarterback Sean Clifford, in conjunction with Jason Stahl, the executive director of the College Football Players Association, led a movement at Penn State that ended after school and Big Ten administrators learned of the issue.
While most within the college sports industry agree that the next evolution of athlete compensation is a more structured and organized effort — revenue sharing, collective bargaining, etc. — they vehemently push back against the employment issue. Yet, several high profile coaches — Alabama’s Nick Saban, North Carolina’s Mack Brown and Penn State’s James Franklin, to name a few — have publicly voiced their desire for a more professionalized framework of athlete pay, even one that turns players into employees.
For a couple of years now, college leaders have examined ways to provide athletes with more resources and even split a portion of revenue without having them deemed employees. It’s a complex issue that has not been rectified.
For many, the employment debate is a non-starter.
“They are students first and athletes second. That is non-negotiable for me,” Pac-12 commissioner George Kliavkoff said in an interview last year. “The natural conclusion of deeming student athletes employees is very dangerous. It would also mean less of an investment in other sports that are not profit generating.”
Some administrators believe the solution lies in the nation’s Capital, where a Congressional bill could lay a legal path for schools to provide athletes collective bargaining rights and even revenue sharing provisions without employment.
In their pursuit of a federal NIL bill, college leaders have encouraged lawmakers to include in legislation a prohibition on athletes being deemed employees. Several bills from Republican lawmakers have featured such a concept — a high hurdle for Democrats to clear.
The employment issue is further driving a wedge between two entities — higher education and major college football/basketball — that feel destined toward a divorce.
Mit Winter, a sports attorney based in Kansas City and himself a former college basketball player at William & Mary, believes the future of college sports could possibly be separate from their own schools.
“I don’t know if universities and conferences and the NCAA want to participate in a system where they are collectively bargaining with the athletes. It remains to be seen,” he said in a previous interview. “There are different models that have been kicked around where athletic teams are spun off from the school and are their own standalone entities.”
Deeming college athletes as employees would have wide ranging impacts on both the athletes themselves and their universities. Athletes would be rudely welcomed to the world of federal taxation. And they may even be at risk of termination by their new employer, the school.
For schools, it’s a complex issue. Athletic departments hold a Section 501(3)c, non-profit designation. Many of them receive funding from both the state and their own students.
One administrator described athlete employment as a “freight train” bearing down on college sports, a movement that grouped with other changes is quickly altering the landscape of the industry — for better, some say; for worse, say others.
“Employee status is not a guarantee of better rights, but it would certainly empower the athletes to negotiate for better rights,” Feldman said in an interview last year. “Whatever the path is, there are downsides to the path. I don’t think any solution is necessarily going to be perfect. For every gain made for one athlete, it may lead to less from another athlete.”