The Ayes Have It: Dartmouth Men’s Basketball Team Is the First Student-Athletes to Unionize

The vote was held after Region 1 denied Dartmouth’s request to postpone the election, stating that Dartmouth did not make a “clear showing” that postponement was “necessary under the particular circumstances of the case.” Dartmouth now has until March 12 to file objections to the election results. If objections are filed, the Regional Director will then determine whether to hold a hearing or dismiss the objections and certify the results of the election. Given the very high legal standard for setting aside election results, it is unlikely that Region 1 will invalidate the election, even if there is a hearing.

Thereafter, if Dartmouth wishes to pursue its legal challenges to the decision to classify these students as “employees,” it will need to do so by refusing to recognize or bargain with the Union, thereby drawing what is referred to as a “technical challenge” to the certified bargaining unit. Once the Union files unfair labor practice charges against Dartmouth for its failure to bargain in good faith, Dartmouth will then raise these legal issues as its defense. From there, an appeal will escalate the matter from Region 1 to the full NLRB. Any decision by the NLRB can then be appealed to the U.S. Court of Appeals for the Second Circuit, which means it might be quite some time before negotiations begin.

It is anticipated, but remains to be seen, if Dartmouth will follow this course of action. Just hours after the vote, Dartmouth filed its anticipated appeal of Region 1’s underlying decision, arguing that the decision was “as unprecedented as it is incorrect” and that “[o]nly an extraordinary and palpably incorrect reading of the record could have led the Regional Director to her conclusion.”

The NCAA released a short statement following the vote, stating it “is making changes to deliver more benefits to student-athletes” and that it “looks forward to working with Congress to make needed changes in the best interest of all student-athletes.” However, the NCAA and schools “should not be forced into an employment model.” As is the case for many issues, Congress is deeply divided and appears unlikely to reach a consensus. Senator Chris Murphy (D-CT) released a statement blasting the NCAA and schools to stop “lobbying Congress to roll back athletes’ rights, and instead start negotiating with athletes on revenue-sharing, health and safety protections, and more.” Former Division I football coach Tommy Tuberville (R-AL) asserted that organized labor “will absolutely kill college sports” and that players are student-athletes—not employees—and “if you want the federal government involved and [to] ruin something, you try to make the student-athletes employees[.]”

NCAA President Charlie Baker has repeatedly lobbied Congress for federal name, image and likeness legislation, an antitrust exemption, and to carve student-athletes out from the labor employment model. Those efforts have yielded two-dozen pieces of federal legislation, none of which have successfully made it out of committee.

As Dartmouth College contemplates its next steps, attention will likely turn to the pending case in Region 31 (in Southern California) involving the NCAA and the PAC-12 Athletic Conference. There, the petitioner has taken the position that the NLRB has jurisdiction over private and public universities under a “joint-employer” theory. If the Regional Director agrees, a ruling could have significant and far-reaching impacts.