The Dartmouth men’s basketball team recently took unilateral action to form a union.[2] The team signed representation cards with SEIU Local 560, Dartmouth’s Staff Union.[3] Additionally, the team petitioned the National Labor Relations Board (NLRB). Recognition as a union from the NLRB, a federal agency overseeing the private sector, would require establishing the status of student-athletes as employees.[4] This effort by the Dartmouth men’s basketball team marks another development in the ongoing struggle between student-athletes and the NCAA regarding the issue of compensation and amateur status. The NIL era has improved the position of student-athletes in relation to the NCAA. The establishment of unions would further strengthen the position of student-athletes.
The effort to unionize comes as a logical next step when considering the recent developments within the college athletics landscape. The introduction of name, image, and likeness (“NIL”), which allows student-athletes to receive compensation from third-party sources without surrendering their amateur status with the NCAA, fundamentally disrupted the traditional conception of college athletics.[5] NCAA’s idea of amateurism centers on the lack of compensation for student-athletes, but NIL directly challenges this idea. Further, the Supreme Court’s decision in Alston v. NCAA, unanimously prohibiting the NCAA from restricting student-athletes’ education-related benefits, displays the growing acceptance of compensating student-athletes in general.[6]
While the actions of the NCAA and the Supreme Court display an acceptance of partial compensation, student-athletes are still designated as amateurs under the current model. This status prevents them from exercising effective agency over their careers. Unionization and recognition as employees, however, would provide student-athletes, like the Dartmouth players, with a seat at the bargaining table to address their grievances with the NCAA and its member institutions.
The issue of employment status, inherent in the Dartmouth players' effort to unionize, is one that has been addressed by a variety of groups involved in the issue. The Third Circuit recently heard oral arguments regarding student-athlete status as employees in Johnson v. NCAA.[7] Johnson, a former Villanova football player, was joined by five other plaintiffs seeking to establish the status of student-athletes as employees.[8] The Third Circuit denied the NCAA’s motion to dismiss the case in February 2023.[9] The three-judge panel of the Third Circuit was largely unpersuaded by the arguments of the NCAA.[10] The judges challenged the NCAA on the substantial time commitment required of student-athletes, as well as the lack of control by student-athletes over their athletic and academic affairs.[11] The litigation is still ongoing, but if Johnson and his co-plaintiffs prevail in their effort to secure recognition as employees, it could assist the argument of the Dartmouth players.
Additionally, the NLRB addressed the status of student-athletes as employees in an internal memo from 2021.[12] The organization acknowledged that student-athletes participating in certain football and basketball programs may be eligible to be considered as employees.[13] The Dartmouth players cited this memo in their defense of their effort to unionize.[14]
Their unionization effort is not the first of its kind, but the first in the new NIL era of college athletics. In 2014, the Northwestern football team attempted to unionize but was ultimately unsuccessful.[15] The NLRB denied their petition in part because the other members of their conference, the Big Ten, included public schools that are not under NLRB jurisdiction.[16] In the denial, the NLRB expressed fears that this would create an unequal bargaining power.[17] Additionally, the petition predated the acceptance of student-athletes as employees by the NLRB.[18]
The Dartmouth team can find hope in the fact that they are distinguished from Northwestern in these two respects. First, Dartmouth is a member of the Ivy League, which is composed of eight private schools, giving the NLRB jurisdiction over the entire conference. And second, the NLRB’s acceptance of student-athletes as employees along with its authority over all private schools in the Ivy League gives Dartmouth a chance of success in their fight for unionization.
The Dartmouth team still faces significant obstacles in their effort to unionize. Clear objections to the status of student-athletes have been made by Dartmouth College’s attorneys.[19] In their response to the petition, Dartmouth’s attorneys highlighted that the men’s basketball team is not a source of revenue for the college, and given the institution's focus on academics, granting student-athletes employment status would be improper.[20] In support of their argument, they highlighted that the term “student-athlete” is still used at major institutions whose basketball programs generate significant revenue, such as Kansas and North Carolina.[21] While this may be true currently, the ongoing litigation and efforts of the NLRB put this claim in jeopardy.
Further, the NCAA also recently objected to the recognition of student-athletes as employees in an October Senate hearing.[22] Charlie Baker, President of the NCAA, called on Congress to take action to prevent the recognition of student-athletes as employees.[23] Baker expressed concern over the unintended consequences employment status could cause, including jeopardizing athletic programs at the Division II and III levels.[24]
Currently much is still to be decided, but the Dartmouth team certainly has impacted the discussion of student-athletes and compensation through their effort to unionize. The statements of the NLRB and ongoing litigation in the Third Circuit indicate that an avenue for student-athlete recognition as employees exists. Even though it appears Dartmouth may face an uphill battle, its actions show the changing landscape in college athletics. Their intention to receive proper compensation for their work on behalf of the school is one that is supported by many student-athletes nationwide.
References: [2] Romeo Myrthil and Cade Haskins. Haskins and Myrthil: Why We Are Unionizing, The Dartmouth (18 September 2023) https://www.thedartmouth.com/article/2023/09/haskins-and-myrthil-why-we-are-unionizing. [3] Id. [4] What We Do, National Labor Relations Board, https://www.nlrb.gov/about-nlrb/what-we-do. [5] Andrew Brandt. Business of Football: The Supreme Court Sends a Message to the NCAA, Sports Illustrated (29 June 2021) https://www.si.com/nfl/2021/06/29/business-of-football-supreme-court-unanimous-ruling. [6] Id. [7] Max A. Lamcken. Third Circuit to Remove Game Changing Play in Johnson v NCAA, 67 Villanova Law Review (15 April 2023) https://www.villanovalawreview.com/post/1476-third-circuit-to-review-game-changing-play-in-johnson-v-ncaa. [8] Id. [9] Id. [10] Nicole Auerbach. In Johnson v. NCAA, Judges Are Asking the Right Questions of the College Sports Model (15 February 2023) https://theathletic.com/4208822/2023/02/15/johnson-v-ncaa-case-judges-appeals/. [11] Id. [12] Office of Public Affairs, NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions, National Labor Relations Board, (29 September 2021), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status-of. [13] Id. [14] Mythril and Haskins, supra. [15] Ben Strauss. N.L.R.B. Rejects Northwestern Football Players’ Union Bid, New York Times (17 August 2015) https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html [16] Id. [17] Id. [18] Id. [19] Dean Lowery. Men’s Basketball Unionization Receives Response from College’s Lawyers (13 October 2023) https://www.thedartmouth.com/article/2023/10/bball-union-update. [20] Id. [21] Id. [22] Ralph D. Russo. NCAA President Shifts Focus to Employment Status of College Athletes During Senate Hearing (17 October 2023) https://apnews.com/article/ncaa-nil-charlie-baker-hearing-senate-83ed8f9e1fb267db1ce5e24d6b79617a. [23] Id. [24] Id.