Dartmouth Athletes Vote To Unionize: Now the Legal Challenges Begin

March 07, 2024 In a historic moment for college athletics, Dartmouth College (“Dartmouth” or “the College”) men’s basketball team voted 13-2 to unionize and become members of the Service Employees International Union (“SEIU”), Local 560. The vote was held following the Decision and Direction of Election issued by National Labor Relations Board (“NLRB” or “Board”) Regional Director for Region 1, Laura A. Sacks

By Gregg Clifton and Christina Stylianou

In a historic moment for college athletics, Dartmouth College (“Dartmouth” or “the College”) men’s basketball team voted 13-2 to unionize and become members of the Service Employees International Union (“SEIU”), Local 560. The vote was held following the Decision and Direction of Election issued by National Labor Relations Board (“NLRB” or “Board”) Regional Director for Region 1, Laura A. Sacks. She had previously determined, following a multiple-day hearing and extensive post-hearing briefing by the parties, that the student-athletes were employees of the College pursuant to the National Labor Relations Act’s (NLRA or Act) definition of employee, pursuant to Section §2(3) of the Act, focusing her determination on the alleged control Dartmouth has over the players, including preferential admissions, training facilities, receipt of sneakers and travel accommodations, among other things. As a result of this conclusion, Regional Director Sacks ordered the scheduling of the in-person vote. (For further details on the earlier proceedings in the Dartmouth matter, please see our past articles discussing them here and here.)

Despite a late “Hail Mary” type effort from Dartmouth to seek an extraordinary remedy by filing a Motion to Reopen the Record, arising from the already completed Representation Hearing that would have delayed the potential election, Regional Director Sacks denied the motion on substantive and procedural grounds, concluding that the motion was not timely filed within ten (10) days of her February 5th decision and that Dartmouth’s argument challenging her legal conclusions was more appropriately considered by the Board as part of a Request To Review. As a result, the motion was denied and the election was permitted to proceed. It is important to note that the vote in favor of unionization is the first in the public record for an NCAA member school. (Northwestern University’s similar vote in Region 13 of the NLRB was held roughly a decade ago but the ballots were actually impounded. The results of that election have never been tabulated or revealed following the refusal of the NLRB to accept the matter and render a formal decision regarding the potential employee status of the Northwestern University football players.)

  • What comes next at Dartmouth?
  • What are the next potential procedural steps in this ongoing complicated legal process?

Despite the significance of the election result, the battle over the conclusiveness of the athletes’ ability to unionize remains ongoing for the near future, expected to span at least several months. Initially, the actual results of the 13-2 election still need to be confirmed and formally certified by Regional Director Sacks. During the week following the election, both parties have the legal right to file objections to the election, but objections are typically filed by the losing party in a union election, in this case Dartmouth. The objection(s) typically allege that specific conduct of the winning party during the election process violated the terms of the NLRA. While it is doubtful that Dartmouth will pursue this course of action, it remains a legal option for Dartmouth to consider.

While the results of the election await official certification by the NLRB, as encouraged by Regional Director Sacks, Dartmouth filed a lengthy and substantive Request For Review consisting of 58-pages, challenging her Decision and Direction of Election and seeking to overturn her decision finding the student-athletes to be Dartmouth employees and dismissing the athletes’ petition to unionize. In a strong remark made in the Request For Review appeal filing, Dartmouth challenged the Regional Director’s conclusion and argued that “the Regional Director made an unprecedented, unwarranted, and unsupported departure from every applicable Supreme Court, federal court and Board precedent and created a new definition of ‘employee’ in a manner that not only exceeded her authority but promises to have significant negative labor and public policy implications.”

While the parties await a decision from the NLRB regarding Dartmouth’s initial appeal of the Regional Director’s conclusion of employee status for the men’s basketball team, the SEIU may make a formal request to commence negotiations after the election results are officially certified. If that request is made by the SEIU and Dartmouth refuses to meet and negotiate (which is likely while the Request For Review is pending), it is likely that the SEIU will file an unfair labor practice charge, pursuant to Section 8(a)5 of the NLRA, alleging that the College is failing to comply with their legal requirement to bargain in good faith with the union.

This potential union unfair labor practice charge would then be investigated by Region 1 investigators and, unless the charge is stayed during the pendency of Dartmouth's Request For Review, it is likely that a formal complaint would be issued and a hearing would be scheduled before an Administrative Law Judge (“ALJ”) to determine the merits of the union's allegations. Any ultimate conclusion reached by the ALJ that finds Dartmouth’s refusal to bargain to be a violation of the NLRA would likely be presented to the Labor Board by Dartmouth in another appeal. If the Board confirmed the 8(a)5 finding of the ALJ and ultimately denied Dartmouth’s efforts to have the finding of employee status of the team members overturned, the case would then be appealed and considered by the Circuit Court of Appeals. This court would render a decision on the employee status of the student-athletes before potential consideration of the issue by the Supreme Court.

The initial challenge ahead for Dartmouth’s appeal in its Request For Review and to overturn Ms. Sacks’ opinion is clear and daunting based upon the current make-up of the Labor Board. Currently, only four of the five Board positions are filled, as the Biden administration has refused to nominate any individual to become the fifth member of the Board. At the current time, the NLRB consists of only the following four members, Chairperson Lauren M. McFerran, Marvin E. Kaplan, David M. Prouty and Gwynne A. Wilcox. Interestingly, two of the four current members of the NLRB have previously served in General Counsel roles for the SEIU. Prouty previously served as General Counsel of the SEIU Local 32BJ as well as General Counsel of the Major League Baseball Players Association from 2013-2017, after serving as the players Chief Labor Counsel from 2008-2013. Wilcox, prior to joining the NLRB, previously served as Associate General Counsel of Local 1199SEIU-United Healthcare Workers East.

Despite comments by Mary Kay Henry, International President of the SEIU, referring to the Ivy League as a “scandalous model of nearly free labor in college sports,” Dartmouth strongly disagreed with this allegation and asserted that “for Ivy League students who are varsity athletes, academics are of primary importance, and athletic pursuits is part of the educational experience.” The statement concluded that classifying Dartmouth’s student-athletes as employees is “as unprecedented as it is inaccurate.”

After just completing their 2023-24 basketball season earlier this week, Dartmouth’s team of fifteen players will now wait, along with Dartmouth, for a legal determination of their status, as the game shifts from the basketball court to the legal arena before the National Labor Relations Board and potentially further appeals in federal court.