Dartmouth Won’t Recognize Hoops Union and Bargain, NLRB Told

It's been nearly eight months since NLRB regional director Laura Sacks found that Dartmouth College men's basketball players are employees within the meaning of the National Labor Relations Act. And it's been seven months since the players unionized with the Services Employees International Union Local 560. But to date there has no bargaining between Dartmouth and the union, and the agency's board hasn't indicated if it will accept Dartmouth's request for review (appeal), let alone set a schedule.

A motion for summary judgment filed Monday by Thomas E. Quigley, counsel for the NLRB General Counsel (Jennifer Abruzzo), could shake things up.

Quigley asked the agency's board, which has four members and one vacancy, to issue a decision finding that Dartmouth has violated the NLRA by failing to recognize the union and bargain in good faith. To that end, Quigley wants the board to order Dartmouth to bargain for a period of 12 months. He also asks the board to instruct Dartmouth that, "upon the Union's request," the college must agree to a bargaining schedule where they'd meet with the union at least once a month for two hours. Also, within five days of each bargaining session, Dartmouth would write a summary to an NLRB compliance officer.

To support this position, Quigley argues that Dartmouth's Sept. 24 answer to the general counsel's Sept. 3 complaint "raised no material issue of fact" that would require an evidentiary hearing and that Dartmouth "has no valid defense" to the complaint accusing the college of failing to bargain. Quigley essentially says that since Dartmouth has openly refused to bargain with the union and since applicable precedent requires management to bargain with a union, the board should easily grant summary judgment.

In its answer, Dartmouth didn't dispute it had not bargained with the union but instead focused on arguments that the players are not employees. Dartmouth reasons that since, in its view, the players are not employees, the school need not bargain with the union.

Although Quigley's motion concerns legal obligations on the part of management to bargain with a union, it is contextually about the much larger question: Are the Dartmouth players employees?

If the board grants Quigley's motion and orders Dartmouth to bargain, Dartmouth would likely petition a federal court for review, thus commencing a legal process that could eventually land at the U.S. Supreme Court. If the board denies the motion, the situation would continue with Dartmouth, waiting for the board to decide if it will consider its appeal, not bargaining with the union, which demands bargaining. Eventually the matter will be heard in the courts, but how long it takes to get there will be impacted by how long the controversy stays with the NLRB.

The resolution of the Dartmouth matter is of interest not only to Dartmouth men's basketball players but to Dartmouth athletes on other teams and to athletes at other D1 private colleges, too. If the Big Green players are employees, athletes at other private colleges could rely on that finding to argue they too are employees. The situation for athletes at public universities is different since state law governs their employment and bargaining rights, and those rights vary widely by state.

However, in a separate proceeding in California, an NLRB administrative law judge could find that University of Southern California football and men's and women's basketball players are employees of their school, conferences and the NCAA, with conferences and the NCAA as joint employers. Such a ruling could potentially make athletes at both private and public D1 schools employees of their conference and the NCAA even if they are not (yet) recognized as employees of their schools.

It will likely be weeks before the board decides the motion. The Big Green's 2024-25 season starts on Nov. 4 when they host the Vermont State University-Lyndon Hornets at Leede Arena in Hanover, N.H.

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