Dartmouth Men’s Basketball Votes to Unionize: What is the Future of College Sports?

Hallie Cooper*

College sports’ relationship with money has seen immense change over time. Prior to the National Collegiate Athletic Association (“NCAA”), colleges and universities paid their athletes.¹ Following the creation of the NCAA, college athletes were no longer allowed to receive payment from schools or other outside sponsorship deals.² The NCAA consistently relied on the belief that college athletes are “amateurs” and therefore should not receive any form of payment.³ The Supreme Court upheld this belief in the 1984 case NCAA v. Board of Regents of the University of Oklahoma.⁴ Following this decision, college athletics, especially college football and basketball, have become a profitable product, specifically by entering expensive media deals. Due to the large amount of money colleges make off of athlete performance, a push began to allow athletes to benefit from their “name, image, and likeness, or NIL[,]” a legal concept under the right to privacy allowing athletes to profit off their “brand” by promoting products and services.⁵

Two court cases, O’Bannon v. NCAA and NCAA v. Alston, and state legislation signaled a shift in the college sports legal landscape.⁶ Both cases analyzed the NCAA’s “amateurism” argument under antitrust principles.⁷ The Ninth Circuit decided O’Bannon in 2019, finding that preventing college athlete compensation was subject to antitrust scrutiny and had anticompetitive effects.⁸ The court nevertheless upheld the restraint, allowing students to receive a cost of attendance scholarship as maximum compensation.⁹ Following O’Bannon, California passed the Fair Pay to Play Act, allowing California college athletes to profit off their NIL without losing eligibility.¹⁰ Thirty states followed California’s lead and passed similar legislation.¹¹ In 2021 the Supreme Court decided Alston, holding that specific education-related benefits violated antitrust law.¹² Prominently in this opinion, Justice Brett Kavanaugh wrote a concurrence explaining how NCAA limits on compensation violate antitrust law.¹³ Though Alston did not specifically legalize NIL compensation for college athletes, the NCAA quickly adopted an interim NIL policy allowing athletes to engage in NIL activity. ¹⁴ Following this decision, many college athletes have made considerable amounts of money by entering into endorsement deals. For example, Iowa Women’s Basketball player Caitlin Clark is expected to have a total annual valuation of $3.1 million with deals from Nike, State Farm, and Gatorade.¹⁵ NIL has increased pay for college athletes, but change is still ensuing within college athletics.  

Additional payment for athletes has been debated, specifically focusing on a key question: “Are college athletes employees?” On February 5, 2024, a National Labor Relations Board (“NLRB”) found that Dartmouth men’s basketball players are employees of their school, not students participating in an extracurricular activity.¹⁶ The board found that as athletes, the basketball players are in an employer-employee relationship “perform[ing] work in exchange for compensation.”¹⁷ The board explained that the basketball players perform work for the University and Dartmouth has control over this work, thus making the athletes Dartmouth employees.¹⁸ Following the recent decision, the Dartmouth men’s basketball players voted thirteen to two to unionize, joining the Service Employees International Union Local 560, a Union representing other Dartmouth employees.¹⁹ These basketball players explained they want to unionize to negotiate for payment and better health insurance benefits.²⁰ Payment is especially at the forefront of their unionization efforts because Ivy League students are unable to receive athletic scholarships that other college athletes can receive.²¹ Moving forward, unionization would allow Dartmouth athletes the ability to negotiate with the University on many topics including “wages, hours, safety regulations, and other terms and conditions of employment.”²² Dartmouth has opposed this decision, explaining that: 1) the school exerts the same amount of control over the basketball players compared to people participating in other activities and 2) these athletes have chosen to play basketball for the university as an extracurricular.²³ Dartmouth filed a motion to stay the election, but this was denied.²⁴ Dartmouth additionally filed an appeal of the February 5th employee decision, which the NLRB granted.²⁵ The future for the Dartmouth athletes is uncertain, pending appeal.²⁶

Dartmouth is not the only school to file a complaint with the NLRB. Previously, the NLRB decided Northwestern Football players were employees for similar reasons, citing the amount of control the school has over the athletes.²⁷ In the end, the unionization votes were  impounded, and the NLRB decided that allowing private school athletes to compete against public schools in the Big Ten “would skew the labor market in the conference.”²⁸ Differently, Dartmouth athletes do not face this issue, as they compete in the Ivy League, made up of eight private schools.²⁹ University of Southern California (“USC”) football and basketball athletes filed a similar complaint with the NLRB in California, claiming the NCAA and USC have misclassified players as student-athletes instead of employees.³⁰ Differently than Dartmouth, USC is a member of the PAC-12 (and soon to be member of the Big Ten) and will likely face similar issues to the Northwestern University athletes.³¹

The question “are college athletes employees?” is popping up at universities throughout the country, and the debate will likely not end soon. Many expect this question to go up to the Supreme Court, similar to the Alston decision.³² The future of college athlete compensation is uncertain; however, it is clear the NLRB believes college athletes are employees.³³ Additionally, Justice Kavanaugh’s Alston concurrence shows he opines that the NCAA clearly violates antitrust law by “agreeing not to pay their workers a fair market rate.”³⁴ Further, questions remain regarding how universities would have to treat college athletes if they become employees, include:

• How will athletes be paid—what would a pay structure look like?³⁵
• How would schools continue Title IX compliance?³⁶
• How would this apply to athletes of smaller sports?³⁷ and
• Will college athletes be considered “at-will” or contract employees?³⁸

I expect future litigation, legislation, and potentially NCAA policy will shape the college athlete landscape determining if college athletes are employees. The question remains what this will look like for universities and athletes themselves.

* Hallie Cooper, J.D. Candidate, University of St. Thomas School of Law Class of 2024 (Senior Editor).

1. Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 69 (2021). ↩︎
2. Taylor P. Thompson, Maximizing NIL Rights for College Athletes, 107 Iowa L. Rev. 1347, 1353 (2022). ↩︎
3. Michael D. Fasciale, The Patchwork Problem: A Need for National Uniformity to Ensure an Equitable Playing Field for Student-Athletes’ Name, Image, and Likeness Compensation, 52 Seton Hall L. Rev. 899, 904 (2022). ↩︎
4. Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 120 (1984). ↩︎
5. NCAA Name, Image, Likeness Rule, NCSA College Recruiting, https://www.ncsasports.org/name-image-likeness, (last visited Mar. 10, 2024). ↩︎
6. See O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1053 (9th Cir. 2015); see Alston, 594 U.S. at 70. ↩︎
7. O’Bannon,802 F.3d at 1049; Alston, 594 U.S. at 70. ↩︎
8. O’Bannon,802 F.3d at 1079. ↩︎
9. Id. ↩︎
10. Jones Day Talks: Game Changer? California’s Fair Pay to Play Act and the Future of College Sports, Jones Day (Oct. 2019), https://www.jonesday.com/en/insights/2019/10/game-changer-californias-fair-pay-to-play-act. ↩︎
11. See Amy L. Piccola, Tricia Duffy, & Levi R. Schy, NIL Legislation Tracker, Saul Ewing, https://www.saul.com/nil-legislation-tracker, (last visited Dec. 9, 2023). ↩︎
12. Alston, 594 U.S. at 74. ↩︎
13. Id. at 107–10 (Kavanaugh, J., concurring). ↩︎
14. NCAA Adopts Interim Name, Image, and Likeness Policy, NCAA, https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx, (last visited Apr. 7, 2024). ↩︎
15. Noah Henderson, Caitlin Clark ‘NIL Paycut’ Misinformation Highlights WNBA Shortcomings, NIL FanNation (Mar. 9, 2024, 3:00 PM EST), https://www.si.com/fannation/name-image-likeness/news/caitlin-clark-nil-paycut-misinformation-highlights-wnba-shortcomings-noah9#:~:text=With%20ever%2Dincreasing%20stardom%20and,makes%20this%20estimation%20feel%20conservative. ↩︎
16. Jimmy Golen & Ralph D. Russo, US Labor Officials Say Dartmouth Basketball Players Are School Employees, Sets Stage for Union Vote, AP News (Feb. 6, 2024, 10:30 AM CDT), https://apnews.com/article/dartmouth-basketball-union-ncaa-employees-19839a9afb5c8048a015cbcb86c0e25b; LaKeisha C. Marsh, Montoya M. Ho-Sang, Genaira L. Tyce, Jamel A.R. Greer, & Sommer Sharpe, Dartmouth Basketball Players Have Voted to Unionize, Akerman (Mar. 7, 2024), https://www.akerman.com/en/perspectives/dartmouth-basketball-players-have-voted-to-unionize.html. ↩︎
17. Bethany S. Wagner, Neil V. McKittrick, & Zachary V. Zagger, NLRB Regional Director Rules Dartmouth Players Are Employees, Setting Up Potential Board Case, Ogletree Deakins (Feb. 7, 2024), https://ogletree.com/insights-resources/blog-posts/nlrb-regional-director-rules-dartmouth-basketball-players-are-employees-setting-up-potential-landmark-board-case/. ↩︎
18. Marsh, Ho-Sang, Tyce, Greer, & Sharpe, supra note 16. ↩︎
19. Golen & Russo, supra note 16. ↩︎
20. Golen & Russo, supra note 16; Andrea Hsu, Dartmouth Men’s Basketball Team Vote to Unionize, Shaking Up College Sports, NPR (Mar. 5, 2024, 2:39 PM ET), https://www.npr.org/2024/03/05/1235877656/ncaa-dartmouth-mens-basketball-union-election-nlrb. ↩︎
21. Associated Press, Athletes Sue Ivy League Over Its No-Scholarship Policy, ESPN (Mar. 8, 2023, 1:09 PM ET), https://www.espn.com/college-sports/story/_/id/35812605/athletes-sue-ivy-league-no-scholarship-policy. ↩︎
22. Marsh, Ho-Sang, Tyce, Greer, & Sharpe supra note 16. ↩︎
23. Hsu, supra note 20. ↩︎
24. Marsh, Ho-Sang, Tyce, Greer, & Sharpe, supra note 16. ↩︎
25. Marsh, Ho-Sang, Tyce, Greer, & Sharpe, supra note 16. ↩︎
26. Andrew Kreighbaum, College Athletes’ Status as Employees Puts Student Visas at Risk, Bloomberg Law (Feb. 18, 2024, 4:30AM CST), https://news.bloomberglaw.com/daily-labor-report/college-athletes-status-as-employees-puts-student-visas-at-risk#. ↩︎
27. NLRB Regional Director Rules Northwestern Football Players Are Employees and Can Unionize, Archer & Greiner PC (Mar. 28, 2014), https://www.archerlaw.com/en/news-resources/client-advisories/nlrb-regional-director-rules-northwestern-football-players-are-employees-and-can-unionize#:~:text=The%20NLRB%20Office%20in%20Chicago,to%20form%20a%20labor%20union. ↩︎
28. Golen & Russo, supra note 16. ↩︎
29. About the Ivy League, IVY, https://ivyleague.com/sports/2017/8/13/HISTORY_0813173057.aspx, (last visited Mar. 13, 2024). ↩︎
30. Golen & Russo, supra note 16. ↩︎
31. Steve Berkowitz, NCAA, Pac-12, USC Trial Begins with NLRB Over Athletes’ Employment Status, USA Today (Nov. 7, 2023, 6:50 AM), https://www.usatoday.com/story/sports/college/2023/11/07/ncaa-pac-12-usc-student-athlete-misclassification-trial/71483085007/. ↩︎
32. Ralph D. Russo, Dartmouth Men’s Basketball Vote to Unionize Seen as Overdue Milestone to College Athlete Advocates, Wash. Post (Mar. 6, 2024), https://www.washingtonpost.com/business/2024/03/05/dartmouth-union-ncaa-basketball-players/ca2c9fd2-db1b-11ee-b5e9-ad4573c62315_story.html; Marsh, Ho-Sang, Tyce, Greer, & Sharpe, supra note 16. ↩︎
33. Kreighbaum, supra note 26. ↩︎
34. Ralph D. Russo, Billions in TV Revenue, Athletes as Employees on the Line as College Sports Faces More Legal Threats, AP (Oct. 16, 2023), https://apnews.com/article/college-athletes-nil-eb702d33a87bca98084ea492eccdf84c; Alston,594 U.S. at 112 (Kavanaugh, J., concurring). ↩︎
35. Marsh, Ho-Sang, Tyce, Greer, & Sharpe, supra note 16. ↩︎
36. Russo, supra note 34. ↩︎
37. Russo, supra note 34. ↩︎
38. Marsh, Ho-Sang, Tyce, Greer, & Sharpe, supra note 16. ↩︎