This article is featured in the 2024 Winter Carnival special issue.
Since September, the men’s basketball team has waited for a decision from the National Labor Relations Board’s Boston office as to whether they should be considered employees of Dartmouth College. This week, the NLRB made its decision, with a regional officer ruling that men’s basketball players are university employees and ordering an election to vote on unionization.
Service Employees International Union, Local 560 president Chris Peck described the NLRB’s decision as “historical.” If the team can be the first successful unionization effort by college athletes in U.S. history, this would impact players across the country, he stated.
According to Peck, given the NLRB’s ruling in favor of the players, the College will “likely push the case to a higher court,” since “the ruling could affect the entire college athletics [system] across the country.”
Representatives from the College’s athletics department declined a request for an interview. In an email statement following the NLRB announcement, College spokesperson Diana Lawrence wrote that the College does not believe student athletes are College employees; therefore, unionization is “not appropriate in this instance.”
“It’s important to understand that, unlike other institutions where athletics generates millions of dollars in net revenue, the costs of Dartmouth’s athletics program far exceed any revenue from the program — costs that Dartmouth bears as part of our participation in the Ivy League,” Lawrence wrote. “We also do not compensate our athletes, nor do we provide athletic scholarships; all scholarships are based on financial need.”
In the post-brief from the College, Joseph McConnell and Ryan Jaziri, the College’s legal representatives in the case, emphasized the applicability of the term “student athlete” at Dartmouth. The brief argues that if “student athletes” were considered employees of the College, it would be an “extreme departure from existing Board precedent.”
“A finding that the student athletes at issue in this case — who receive no athletic scholarships and participate in a non-revenue-generating sport — are employees, would be an extreme departure from existing Board precedent and would create a new class of employees under the Act,” the brief stated.
John Krupski, attorney for SEIU, Local 560, wrote in a post-brief filing that members of the men’s basketball team should be considered employees based on their “employment duties.”
“The evidence demonstrated that the Players perform services for Dartmouth, which generates revenue, prestige, alumni support and positive impact on reputation, which generates student interest and applications and alumni financial donations,” Krupski wrote. “In exchange for these services, the College provides consideration and subject[s] the Players to the direction and control of Dartmouth in the performance of their employment duties.”
The team’s decision to unionize, which was announced in September 2023, reflects a broader trend of unionization by various groups at Dartmouth and larger discussions surrounding whether collegiate athletes should receive fiscal compensation.
The SEIU, Local 560 represents “most of the service workers” on campus and Hanover Inn employees, Peck said. While they do not represent Dartmouth’s student unions, they played a role in advising the Student Worker Collective at Dartmouth and Graduate Organized Laborers of Dartmouth, according to Peck.
“There’s a lot of organizing going on on campus, which is great,” Peck said. “For years, we’ve been the only union on campus, and it’s been awesome to see student workers stepping up, being brave and signing union cards. I think the SWCD and Graduate Organized Laborers of Dartmouth taking the reins has helped.”
Economics professor Patricia Anderson, an expert on unionization and the history of labor markets, explained that beyond the unionization attempts of the men’s basketball team, there has “been a resurgence in the labor movement.” The recent success of the United Auto Workers strikes has generated a social media movement referring to last summer as a “hot labor summer,” according to Anderson.
Peck also highlighted shifting perspectives on unions.
“I definitely think what’s going on across the country has also helped [the labor movement] because I think people feel safer,” he said. At first, people are nervous about joining unions, they think they’re at risk, but there’s a lot of laws that protect them, they just don’t know until you have the conversations and make them comfortable.”
Over the last couple of years, increasing tension between collegiate athletes, colleges and regulatory bodies such as the NLRB and NCAA sparked discussions over whether collegiate athletes are entitled to fiscal compensation. In 2014, Northwestern University’s football team petitioned to unionize, which was rejected by the National Labor Relations Board a year later. This “effectively denied their claim that they are university employees and should be allowed to collectively bargain,” according to The New York Times.
However, the 2015 NLRB decision did not explicitly state that Northwestern’s football players were not employees, leaving this decision open to possible re-examination. In addition, the Board’s 2015 decision stated that “scholarship players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the Board has considered in other cases.”
On Sept. 29, 2021, the NLRB General Counsel Jennifer Abruzzo released a memorandum providing updated guidance regarding her position that “certain players at academic institutions are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.”
The Board, which only has jurisdiction over the private sector, also stated in its 2015 decision that “it would not promote stability in labor relations to assert jurisdiction in this case” due to Northwestern’s position as the only private university in the 14-member Big Ten.
These constraints ostensibly do not apply to Dartmouth’s men’s basketball’s attempt to unionize, given that the Ivy League consists of private colleges and universities. Cornell University, however, is “chartered as a private institution” but “includes undergraduate colleges and schools that receive some funding from New York State.”
Anderson said that “since there is a public and a private component to Cornell,” the NLRB might use the same argument in Dartmouth’s case.
“A lot of people don’t realize this because there are so many public sector unions, but the National Labor Relations Act only protects your right to be unionized in the private sector,” he explained. “So, that was part of [the NLRB’s] argument — that if we say everyone gets to be unionized, we can’t cover the public because even if they are employees, they’d be employees of their respective state.”
However, in July 2021, the NCAA announced a policy change that allowed college athletes in all three NCAA divisions to be compensated by “name, image and likeness activities consistent with the law of the state where the school is located.”
These new NIL rules have benefited athletes competing in the Power Five Conferences, which include the Atlantic Coast Conference, Big Ten Conference, Big 12 Conference, Pac-12 Conference and Southeastern Conference. Some of these athletes “have played only a few minutes but are already making millions,” according to Anderson.
Anderson stated that teams within the Power Five Conferences would potentially have an easier time arguing for their status as employees of their respective universities, since those programs generate more revenue, require larger time commitments, and can offer athletic scholarships.
“But now with NIL, it’s not clear if they have an argument, or if the players have the desire because they’re already making tons of money,” Anderson added.
