In a move that could turn college sports on its head again, the Dartmouth men’s basketball team voted to unionize Tuesday in an unprecedented move toward forming the first labor union for college athletes.

In an election supervised by the National Labor Relations Board in the school’s human resources offices, the players voted 13-2 to join Service Employees International Union Local 560, which already represents some Dartmouth employees, according to The Associated Press. All 15 members of the team voted.

“Today is a big day for our team,” said Dartmouth juniors Cade Haskins and Romeo Myrthil, who have led the effort. “We stuck together all season and won this election. It is self-evident that we, as students, can also be both campus workers and union members. Dartmouth seems to be stuck in the past. It’s time for the age of amateurism to end.”

The vote dealt another blow to the NCAA’s effort to maintain its amateur business model. Recent court decisions allowing college athletes to profit off their name, image and likeness and receive a stipend for living expenses have chipped away at the framework.

“I think this is just the start,” Haskins said after voting, per the AP. “I think this is going to have a domino effect on other cases across the country, and that could lead to other changes.”

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Why can Dartmouth players unionize?

An NLRB regional director ruled last month that the Dartmouth players are university employees and allowed to unionize. The school appealed the decision on Tuesday afternoon. The case could find its way to federal court, a process that could take years and be decided long after the players graduate.

Laura Sacks determined the players are employees even though they don’t receive athletic scholarships (Ivy League schools don’t provide athletic scholarships) or generate large profits like some other basketball programs because of the strict control that coaches and athletic department officials have over the players’ time and conduct, ESPN reported. Sacks found that the free gear, tickets and other support that they receive, which nonathletes at Dartmouth do not, qualified as their compensation.

In a statement Tuesday, Dartmouth strongly disagreed with athletes being deemed employees.

“For Ivy League students who are varsity athletes, academics are of primary importance, and athletic pursuit is part of the educational experience,” the school said in a statement. “Classifying these students as employees simply because they play basketball is as unprecedented as it is inaccurate. We, therefore, do not believe unionization is appropriate.”

What the NCAA says about college

The NCAA in a statement Tuesday held fast to its belief that college athletes are not employees.

“The association believes change in college sports is long overdue and is pursuing significant reforms,” the statement said. “However, there are some issues the NCAA cannot address alone, and the association looks forward to working with Congress to make needed changes in the best interest of all student-athletes.”

Last fall, more than two dozen college athletic conferences banded together to call for federal name, image and likeness legislation and a uniform standard across college sports. Athletics administrators identified “pay-for-play” schemes and the possibility that college athletes could be classified as university employees as among the most pressing issues Congress must address.

Next week, Rep. Burgess Owens, R-Utah, and Virginia Rep. Bob Good, R-Va., will hold a congressional hearing titled, “Safeguarding Student-Athletes from NLRB Misclassification.”

“The current push to label student-athletes as employees undermines the primary responsibility of colleges and universities: to deliver a high-quality education,” Owens, a former NFL player, said in a statement Wednesday.

Added Good, “Classifying athletic conferences as joint employers is absurd an opens institutions to massive liabilities, costs and completely distorting the relationship between athletes and their universities.”

Legal experts say without federal intervention, schools will likely have to decide in the future whether to treat athletes as employees or make significant changes to reduce the amount of control coaches and athletic departments have over their athletes’ day-to-day lives, according to ESPN.

College athletic conferences urge Congress to pass NIL legislation

Do college athletes want to be employees?

NCAA president Charlie Baker told ESPN in an interview last month that he thinks many schools want to provide more benefits to their athletes, but neither the universities nor most of the players he asked wanted to be considered employees.

“The student-athlete advisory councils that we work with have all basically said, ‘We’re all in on compensation. We think (NIL deals) are a great thing. The enhanced educational benefits, that could be really important for many of us,’” Baker told the network last month. “But employment? That’s not where they want to land.”

Utah football coach Kyle Whittingham said while he likes players being able to make money off their abilities, the way the system works now is unsustainable. He said college football is gravitating toward a minor league for the NFL that governs itself without NCAA involvement.

“If the NCAA tried to regulate it, they’d be sued so fast their head will spin. You can’t tell someone how much they can make unless they’re an employee. They’re not an employee unless it’s a minor league of sorts,” he said on ESPN 700 last summer.

How NIL is transforming college sports
Utah passes law to shield college athlete NIL deals from public scrutiny

About 30 states have passed NIL-related laws, including Utah last week. A provision in the initial bill that explicitly stated college athletes are not employees was removed from the final version. The law, however, bars universities from using funds appropriated by the Legislature for any purpose related to NIL.

NIL is already tricky for players, coaches, athletic administrators and government officials to navigate. It brings a raft of political, tax and trade issues, attracting the attention of Congress, state legislatures, the Internal Revenue Service and the Federal Trade Commission. Making players university employees would inject federal labor laws into the equation.

What about the pep band?

Steven Suflas, an employment and labor lawyer at Holland & Hart in Salt Lake City, told Deseret News columnist Dick Harmon last month that there are myriad loose ends that the NLRB hasn’t considered.

Under federal labor law, public sector employees, those who work for a public university, are not covered. “So, all public universities are off the table,” said Suflas.

“When it comes to unionizing student-athletes, that’s an issue of state law, and no state in the country has passed that statute,” he said. “So right from the start you are only dealing with private universities. So when you see Nick Saban at Alabama making $11 million a year, well, all those powerhouse programs are not covered.”

Suflas said there are parts of the NLRB decision that are simply silly.

“If you are a foreign-born athlete attending Dartmouth on an F1 visa, and the NLRB now says you’re an employee, you’re not a student. You get deported. Your visa is no good anymore,” he said.

There also could be a ripple effect to other nonsports programs on campus.

“But the other piece of it is, what about the student orchestra? What about the pep band? What about student theatrical productions, the student ballet and the student chorus? Are they all employees?” Suflas said.

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While the NLRB doesn’t have jurisdiction over employment matters at government institutions, including college athletics departments, its decision in the Dartmouth case sets a precedent that could apply to all college athletes at private universities.

However, as ESPN reported, the NLRB’s regional office in Los Angeles is reviewing a case that could open the door for all college athletes to unionize. In that case, the petitioner argues that athletes at USC are jointly employed by their school, their conference and the NCAA. Because college conferences and the NCAA are private institutions, a ruling in that case could pave the way for all athletes to collectively bargain with the association or their conference. The NLRB regional director could make an initial ruling by the end of the current school year.

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