The Dartmouth College men’s basketball team could become the first unionized collegiate sports program in the country pending a vote scheduled for March 5. (Photo by Scott Eisen/Getty Images)
PHOENIX – The college sports world is changing at a dizzying rate. From drastic conference realignments to incessant movement in the transfer portals to millions of dollars available for athletes from name, imagine and likeness deals, it’s sometimes hard to keep up with the new world order.
And now there’s another potentially seismic shift on the horizon.
On Feb. 5, Laura Sacks, the National Labor Relations Board regional director, announced the Dartmouth College men’s basketball team could unionize. The date for players to vote on unionization, which could have a longstanding impact on college athletics, is set for March 5. Dartmouth’s appeal date is also set for March 5.
The vote could make Dartmouth men’s basketball the first unionized collegiate sports program in the country.
“Because Dartmouth has the right to control the work performed by the men’s varsity basketball team, and because the players perform that work in exchange for compensation, the petitioned-for basketball players are employees within the meaning of the (National Labor Relations) Act,” Sacks said in an announcement.
The case could potentially impact athletes across the country, including those in Arizona. Representatives from Arizona State’s athletics department declined to comment on the topic, but ASU President Michael Crow made a brief statement about the future of ASU athletics.
“We have to find a way to advance the idea of scholar-athletes in the middle of a world that’s changing rapidly,” Crow said in response to a question about unionizing during a student forum.
In mid-September, all 15 members of the Dartmouth team filed a petition to join the Service Employees International Union. Lawyers for the private university argued that since Dartmouth athletes don’t receive athletic scholarships, the players weren’t eligible to unionize.
Gallagher & Kennedy employment and labor attorney Donald Peder Johnsen asserts athletic scholarships aren’t the most important aspect of the Dartmouth case.
“This ruling by the NLRB Regional Director of the Dartmouth case, it’s going to have a big impact on private universities,” Johnsen said in an interview with Cronkite Sports. “But technically, it doesn’t address and doesn’t affect the status of athletes at public or state universities.”
Dartmouth basketball isn’t the first collegiate program to attempt unionization. In 2014, the Northwestern University football program tried to unionize through the NLRB. The NLRB regional director ruled in the players’ favor, but the NLRB dismissed the case because Northwestern was the only private school in the Big Ten Conference, and “asserting jurisdiction would not promote stability in labor relations due to the variety of state labor laws that would apply to football teams at state-run institutions.”
Dartmouth competes in the Ivy League — a conference composed of eight private schools, which is a key difference between the rejected Northwestern case.
Why is the current case important?
“It’s the first quasi-judicial finding that college student athletes, in this case basketball players at Dartmouth College, should be considered employees of the college because the college exercised sufficient control over their day-to-day activities related to sports and that they were receiving compensation in exchange for playing sports,” said Don Gibson, professor of practice at the Sandra Day O’Connor College of Law. “So, the ramifications are significant if this ruling is upheld, following the expected appeals.”
At public universities, such as ASU and UArizona, athletes would have to follow state guidelines for unionization.
“When you look at the implications for college athletes at public universities, it’s really going to depend on the laws in that state, in respect to whether state employees are able to unionize and strike. Arizona is a right-to-work state so if student athletes in Arizona, assuming that it is affirmed and upheld, seek to form a union, they are likely to gain great traction doing so,” Gibson said.
In previous cases, athletes have cited the Fair Labor Standards Act when claiming they are employees of their university, and should be paid for their work as athletes.
Johnson v. National Collegiate Athletic Association is a lawsuit between current and former collegiate athletes and the NCAA. The defendants include dozens of Division I universities, and the athletes argue they should be considered employees in accordance with the FLSA. The athletes are looking for pay for practice and game periods. An official ruling has yet to be made on the case.
Two past court cases have administered consistent results regarding collegiate athletic standing.
In 2016, the Seventh Circuit Court of Appeals rejected former track and field athletes’ FLSA claim that they were employees. The former University of Pennsylvania athletes argued that as “employees,” they are entitled to minimum wage through the FLSA. However, the Seventh Circuit determined that the athletes are part of a “revered tradition of amateurism in college sports.” The NCAA doesn’t consider amateur athletes employees.
In 2019, a University of Southern California football player made a similar claim against the NCAA and the Pac-12 Conference.
“The panel affirmed the district court’s dismissal of a Division I college football player’s claim that he was an employee of the National Collegiate Athletic Association and the Pac-12 Conference within the meaning of the Fair Labor Standards Act and California labor law and thus entitled to minimum wage and overtime pay,” the official court ruling said.
In the event Sacks’ ruling is upheld and Dartmouth men’s basketball players are allowed to unionize, the players could collectively bargain for a number of issues.
“They could organize, they could form their unions, they could strike if they don’t like working conditions,” said Aaron Hernandez, assistant dean and executive director of Allan “Bud” Selig sports law and business program. “They could collectively bargain if the university is earning a check based off of some TV deal, as part of the greater conference.
“Same way with players unions and professional leagues, they come up with salary caps and practices, and what owners can and cannot do. Those conditions they’d be able to collectively bargain on to get themselves in the best position possible, individually.”
If Dartmouth does appeal the decision on March 5, an official ruling could take exponentially longer.
“It’s going to get appealed, and it’ll be stuck in the courts for at least 3-5 years,” Hernandez said.