Stand and be counted: What Dartmouth basketball’s pending union vote means for college athletics

The future of college athletics is slated to, once again, be up in the air on an expected cool, rainy day in New Hampshire on Tuesday.

The Dartmouth men’s basketball team is scheduled to hold a union vote one month after a regional National Labor Relations Board director functionally declared the athletes employees of the school and, therefore, eligible to unionize.

The ramifications of the ruling and the vote’s result will reach beyond Hanover, N.H., of course, as the landscape changes due to many factors including name, image and likeness.

Tuesday also marks the deadline for Dartmouth to file an appeal with the labor relations board’s national office as well after the initial deadline was extended. At press time, Dartmouth had asked the board to delay Tuesday’s vote or, if it happens, impound the results.

“If they are declared to be employees and they’re eligible to unionize, what it means is that every private school in the country will also qualify to unionize,” economist Andrew Zimbalist said. “That means Division II schools, it means Division III schools, it means my school, Smith College, because the basketball players at Dartmouth basically have the same existence as a DIII school.”

The Dartmouth team could be the first unionized college sports team, but how far-reaching the effects will be figures to be a waiting game. The case is expected to go through a slew of appeals that could delay a significant impact. But as the college sports ecosystem continues to swirl with an overwhelming number of legal challenges to the traditional amateur model, Sports Business Journal spoke with legal experts to make sense of the looming questions presented by the Dartmouth case.

“The amount of revenue being generated is much higher now than it was; coaches are making more, the way that athletes are treated, I would argue that the amount of control over a lot of athletes has even increased [over the last decade-plus],” said Mit Winter, an attorney at Kennyhertz Perry. “So you have a lot of different factors that have kind of shifted more towards making it easier for the courts and NLRB to say at least some of these athletes are being treated as employees under the law.”

What’s at stake?

The Dartmouth case, for the most part, projects as a bullet point in the larger fight over employment and college athletes.

Unionization isn’t a new concept in college sports. Northwestern football players attempted to do so in 2014, but after a regional NLRB director sided with the players, the case was dismissed at the national level. Had the Big Ten program won its case, the effects would have likely been felt across the highest levels of college sports.

This case, however, is likely more hyper-specific to Dartmouth and schools in similar positions. The big difference comes in that Dartmouth competes in the Ivy League, a conference composed entirely of private schools that don’t offer athletic scholarships. Compare that to the Big Ten. While Northwestern is private, the bulk of the league is not.

If the regional NLRB director’s decision is upheld, it would be more feasible for schools and leagues of similar makeups to Dartmouth and the Ivy League to unionize conference-wide, assuming they are private and, thus, subject to the National Labor Relations Act. Should that happen, athletes at those levels could feasibly have a path to collectively bargain with their conferences — which remains a contentious and ongoing debate at the upper tiers of college sports.

“What makes the 2014-2015 NLRB decision from the full five-member panel or board so important to look at is they recognized that there has to be stability in a collective-bargaining arrangement,” said Michael LeRoy, a University of Illinois law professor and expert in sports labor law. “You can’t have one team that’s paying guys and everybody else is playing by no pay for principle. This [case] is different. You’ve got Dartmouth and all the schools in their conference are private. So they all fit under the NLRA umbrella and, therefore, the Northwestern decision from 2014-2015 is irrelevant in this in a large sense, in my opinion.”

If the unionization effort by the Dartmouth men’s basketball team is a crack in the foundation of college sports’ longstanding amateur model, USC’s NLRB fight against the Pac-12 and NCAA might well be the eventual opening of the floodgates in the more crucial debate over athlete employment status and the litany of legal protections that would attach.

The fundamental issue in the USC case hinges on the joint employment theory and whether representatives for the plaintiffs can prove multiple private businesses (the NCAA and conferences, in this case) share in the control of the athletes’ activities. If proved, those schools/athletes would be deemed “private” for the sake of collective bargaining in states in which it’s not permitted outside of the private sector. Translated into simpler terms: If a judge decides athletes are employees of the NCAA and the Pac-12, they’d be eligible to unionize and collectively bargain — a decision that would likely be far less narrow in impact than the Dartmouth case.

“Conceptually what that does is it takes all of the major programs — the Alabamas, the Georgias, specifically Southern states where there is no collective bargaining for the public sector — and taps on a magic wand and says, ‘You are private for the purposes of collective bargaining, because the work is being controlled ultimately by these private organizations called the NCAA, Big Ten, SEC, whatever,’” LeRoy explained. “That’s why this has a more seismic impact, whereas the Dartmouth case is a little more narrow and would apply probably more likely to small private schools, the Ivy League, etc.”

The NCAA has spent the better part of the past two years losing court cases as its outdated amateur model has come under siege. Most expect the USC case will be no different.

“Based on the NLRB decision in the Dartmouth [case], I don’t see how the L.A. regional office is going to reach a different decision at least with [athletes] being employed by the school,” Winter said. “In my view, the factors that led the NLRB to say Dartmouth men’s basketball players are employees are much stronger in the USC case.”

What happens now?

The first step here is whether the Dartmouth men’s basketball team will, in fact, unionize.

All 15 members of the squad reportedly signed a petition asking to be represented by the Service Employees International Union Local 560. Gabe Feldman, director of the Tulane Sports Law Program, also noted last week the expectation is the outcome of the vote — unlike in the Northwestern case — will be made public.

“This Dartmouth case is going to kick off potentially, if they win, it gets all of these private schools to unionize,” Zimbalist said.

“The public schools can’t do that. Within the same conference, you’re going to have schools that are private and schools that are public and the private schools will be able to unionize and the public ones won’t be able to unionize. I think that this creates just a lot of chaos and disruption in the system.”

College sports remain at an impasse. If the Dartmouth men’s basketball case is upheld, cases like the USC complaint are poised to further flip the collegiate model on its head, while simultaneously opening the door for more discussions about sharing the billions in revenue that flows into the enterprise, especially football, annually.

Most administrators in college athletic circles have privately expressed revenue sharing is coming to college athletics sooner or later. The Dartmouth case feels like the next logical step toward that conclusion.