Students who play on college sports teams can be called many things: jocks, teammates, student-athletes.
Members of the Dartmouth College men’s basketball team want another label: employee, and more specifically, unionized employee.
The National Labor Relations Board is soon expected to rule on whether the hoop players can unionize, after team members signed union cards and in September filed to be recognized as a bargaining unit of the Service Employees International Union.
Legal briefs have been submitted, and a hearing officer from the Boston regional office of the NLRB refereed a four-day hearing in October. A decision could come at any point for the team, which was at the bottom of Ivy League standings in early December.
“The question is are they employees? If they are, it’s groundbreaking,” said Chris Peck, president of SEIU Local 560, which represents nearly 500 workers in the Upper Valley, most of them Dartmouth College employees.
The college did not return an email seeking comment for this article.
In their filings, lawyers for the college say the 15 members of the team are merely students participating in college activities.
They don’t get a paycheck, don’t receive a yearend W-2 for income tax purposes, and their financial aid, like all Ivy League schools, has nothing to do with athletics. Eleven of the players receive some form of financial aid.
“Men’s basketball players at Dartmouth are indisputably students first and athletes second. Any ‘control’ or ‘direction’ that Dartmouth exercises is to give the students the freedom to pursue their own academic goals, as for all Dartmouth students,” wrote Joseph P. McConnell and Ryan W. Jaziri, members of the Boston firm Morgan, Brown & Joy.
The college said athletics is no different from other student activities. And, the lawyers warn, student musicians, actors, journalists, even members of club sport teams, would be eligible for unionization if the basketball team has its way.
But the union’s lawyer details the control that a basketball player finds himself under at the college.
He must participate in practice, attend games and review film. The college sets his travel itinerary, meals, transportation to away games, accommodations, even his bedtime hours. He must attend alumni events and engage with fans and the press.
And he is paid by means other than a check: an early read on scholarships, room and board, equipment, tickets to games, apparel, footwear, athletic wear, access to nutritionists and doctors, exclusive use of facilities and academic support.
Dartmouth guard Romeo Myrthil, middle, forward Brandon Mitchell-Day, left, and forward Jackson Munro, right, break up from a huddle during a pause in play with Westfield at Leede Arena in Hanover on Nov. 16. Myrthil is one of three players the team chose to speak about their unionization effort. (Valley News/James M. Patterson)
“The view of college athletes as amateurs is antiquated and should be dismissed as a quaint gesture of a bygone time,” wrote John Krupski of the Concord firm Milner & Krupski. “This is based on the changed landscape of college sports, which are now recognized as a revenue-generating enterprise.”
The basketball players won’t be the first to unionize. Last year, undergraduate students who work in the dining halls voted to form the Student Workers Collective at Dartmouth. Earlier this year, the Collective signed a contract with the college that called for a base pay of $21.
Any decision is likely to be appealed to the full NLRB and could then end up in federal court, according to the Sports Law Blog by the Lewis Brisbois law firm.
According to the blog, the NLRB has been considering a stream of cases that challenge the non-worker status of student-athletes.
In 2023, it advanced an unfair labor practice against the NCAA, the Pac-12 and the University of Southern California for unlawfully misclassifying basketball players as student-athletes rather than employees.
And a federal appeals court in Pennsylvania is considering a case brought by a former Villanova University football player, who claims he meets the definition of an employee under the federal Fair Labor Standards Act.
“Over the last several years, the NLRB has strongly hinted at its inclination to recognize such employment status by way of several statements and announced goals made by NLRB General Counsel Jennifer Abruzzo. In response, multiple unfair labor practice charges have been filed by non-student-athletes in an effort to advance Abruzzo’s agenda,” reads the blog, written by Christina Stylianou and Gregg E. Clifton.
The Dartmouth filings include many discrepancies.
The union, for example, argues that the men’s basketball team generated $1.27 million in revenues for 2022 and made a profit of $39,000 for the college.
The college claims that basketball is a money loser — $800,000 in 2023, for example.
Also, the union claims that players must sign away any right to their name, image and likeness right to Dartmouth.
The college said that is not the case, and they follow Ivy League and NCAA rules for NIL.
Both sides claim recent decisions that bolster their case.
The college pins its hopes on a 2015 NLRB decision involving union representation of Northwestern University players. In that decision, the board decided to not assert jurisdiction and dismissed the case.
In part, the NLRB determined that Northwestern University players are subject to so many rules in the Big Ten and the NCAA, that unionization of just one team would create instability in labor relations.
Meanwhile, the basketball team points to the 2021 Alston decision by the U.S. Supreme Court, which paved the way for athletes to benefit from use of their name, image and likeness.
In that decision, conservative Justice Brett Kavanaugh suggested that collective bargaining on behalf of the athletes could address the shortcomings of compensation.
“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on a theory that their product is defined by not paying their workers a fair market rate,” Kavanaugh wrote.
Lawyers warn, student-musicians, actors, journalists, even members of club sports teams, would be eligible for unionization if the basketball team as its way.
