Nearly a decade ago, members of the Northwestern football team tried to unionize.
The National Labor Relations Board, an independent federal agency charged with protecting employees’ rights to organize and determining whether to have unions as their bargaining representatives, voted unanimously in Aug. 2015 to decline to assert jurisdiction in the case. The NLRB held that asserting jurisdiction over a single team wouldn’t promote stability in labor relations league-wide, as the NCAA and conference maintain significant control over individual teams.
The NLRB noted the decision applied only to the players in the case and didn’t preclude reconsideration of this issue in the future.
Fast forward to 2021, when the United States Supreme Court decided in a 9-0 ruling that antitrust laws prohibit the NCAA from limiting its Division I schools from offering “education-related compensation or benefits” to student-athletes.
That opened the door for dozens of state legislatures to enact name, image and likeness (NIL) legislation permitting student-athletes to benefit financially. Universities could not be directly involved, and organizations were not allowed to offer players deals just to sign with a specific school.
In Sept. 2021, NLRB general counsel Jennifer Abruzzo issued a memo to field offices stating that student-athletes were to be classified as employees under federal labor law.
The Ivy League hasn’t and couldn’t enact any rules and regulations preventing its student-athletes from participating in NIL. In fact, Columbia announced a NIL marketplace in Nov. 2022.
Last year, Dartmouth student dining workers voted to unionize in an election overseen by the NLRB.
At least one member of the Dartmouth men’s basketball team worked in the dining hall and was exposed to the unionization effort, Yahoo Sports reported Friday.
This all serves as a backdrop to the bombshell petition filed with the NLRB last week by Service Employees International Union Local 560 for 15 members of the Dartmouth men’s basketball team seeking bargaining representation.
”We have the utmost respect for our students and for unions generally and we are carefully considering this petition,” Dartmouth College spokesperson Jana Barnello said in a statement, according to the Associated Press. “We are carefully considering this petition with the aim of responding promptly yet thoughtfully in accordance with Dartmouth’s educational mission and priorities.”
Dartmouth Athletics, SEIU Local 560 and the Ivy League did not respond to requests for comment.
All this must be considered within the context of at least two other pending judicial proceedings.
In Johnson v. NCAA, pending in federal court, Princeton and Penn have been two of many university defendants in a lawsuit seeking hourly wage compensation for student-athletes.
In March 2023, one former male and one current female Brown basketball player sued the Ivy League in federal court over its no-scholarship policy.
While experts are divided, Dave Zirin, sports editor of The Nation, believes that the Dartmouth basketball players will succeed in forming a union.
“Not the first college sports team to try, but the first I think are going to win,” Zirin said on X, formerly known as Twitter. “Historic stuff, here.”
Not the first college sports team to try, but the first I think are going to win. Historic stuff, here. Also love the thought of Dartmouth’s bounty of preppy fascist-youth furiously writing unread op-eds about it all. https://t.co/14END18brW
— Dave Zirin (@EdgeofSports) September 14, 2023
What would be some ramifications of a successful petition?
First, a university would find it nearly impossible to drop the team from university to club status. Next, the student-athletes may demand better working conditions and facilities in addition to wages, or perhaps a share of profits from university athletics. And there may be coincident Title IX issues, as the 1972 federal statute could be read to mandate equivalent compensation for both male and female athletes on campus.
Where would the money come from? In the Ivy League, it’d come from some of the largest endowment bases in the country.
The biggest hurdle? The Dartmouth players must demonstrate that they are employees of the university, similar to students working in the dining halls and in the library.
It is theorized that the NCAA generally and the Ivy League specifically could have avoided all this litigation by acting sooner. The NCAA, when first confronted by the compensation issue in the 2009 lawsuit filed by former UCLA basketball player Ed O’Bannon, could have agreed to settle and come up with some form of compensation arrangement. The Ivy League could have come to the bargaining table earlier this year in the Connecticut lawsuit, but instead refused to negotiate and filed a motion to dismiss in the pending case.
Additional reporting by Rob Browne.