After a historic union vote at Dartmouth, what’s next for college sports?

When the ballots were counted Tuesday, Dartmouth’s men’s basketball team had voted to unionize, 13-2, in a historic election on campus in Hanover, N.H. And while this means a ton – for college sports, for athletes’ rights, for the NCAA’s limp grip on amateurism – the process is still far from over.

By voting to unionize, the basketball players are now represented by Service Employees International Union Local 560, which already represents some workers employed by the school. For now, with Dartmouth already filing an appeal Tuesday on the initial ruling that the athletes are employees of the school, the players can collectively bargain with the school over pay, practice hours and other working conditions. This comes a month after Laura A. Sacks, a regional director for the National Labor Relations Board, ruled the players are employees of Dartmouth under the National Labor Relations Act and could therefore hold an election.

The school now has five business days to file an objection to the election results. If an objection is filed, Sacks will decide whether to hold a hearing or dismiss it and certify the results. If no objections are filed, the union will be certified as the players’ bargaining representative. That would have nothing to do with Sacks deeming the players employees. This specific objection would come if Dartmouth thought – or thought it could prove - the local union tried to influence the election by intimidating players into voting yes.

But the much more critical step is the appeal Dartmouth filed with the NLRB on Tuesday. It sends the matter to the four-person national board. Last week, the school’s lawyers filed 42 pages of motions, showing an appetite to fight the basketball team’s effort for as long as they can. The first motion asked the NLRB to delay the election or impound the ballots, meaning they would not have been public until the appeals process played out (this happened when the Northwestern football team held a union vote in 2014). The board denied that motion Tuesday afternoon, after the election unfolded. Then the second motion asked Sacks to reopen the record, which would have allowed Dartmouth to present additional evidence.

That never had much potential, seeing it was based on the argument that Sacks - who would rule on the motion - had erred in deeming the players employees in the first place. She denied it within 24 hours, partly because Dartmouth missed the deadline for the motion by a week. In the lead-up, Dartmouth also sent a one-page memo to the players, which read like a warning of consequences should they unionize.

Again, this is only just beginning. The initial appeal process is expected to take months.

“We always negotiate in good faith and have deep respect for our 1,500 union colleagues, including the members of SEIU Local 560,” a Dartmouth spokesperson wrote in a statement Tuesday that was circulated immediately after the ballot count went public. “In this isolated circumstance, however, the students on the men’s basketball team are not in any way employed by Dartmouth. For Ivy League students who are varsity athletes, academics are of primary importance, and athletic pursuit is part of the educational experience.

“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.”

In late February, speaking to a small group of reporters in Washington, NCAA President Charlie Baker was asked for his plan of action if the Dartmouth players unionized. Baker, an unwavering opponent of athletes becoming employees, evaded each question about Dartmouth. He did, though, drop a not-so-subtle hint at what lies ahead: Another appeal if the first is not successful, then another appeal if that one fails, too.

“Don’t forget how long it takes most NLRB processes to play out,” Baker said. “They take a really long time. You have two levels within the NLRB, and then possibly at least two and maybe three levels of the courts.”

When asked whether he saw this going all the way to the Supreme Court, he deflected. When asked whether he wanted it to, he deflected some more, saying he would “rather see some of the policy proposals we make get implemented” – which, mind you, he says would require Congress to rule that college athletes cannot be employees.

In 2014, when an NLRB regional director ruled Northwestern’s football players were employees, the board took about 16 months to deliberate on the school’s appeal. The NLRB eventually dismissed the players’ petition, saying that because it only has jurisdiction over private schools, Northwestern unionizing would have created an uneven labor environment in the Big Ten. Northwestern is the only private school in the conference.

That’s one key difference between the Northwestern and Dartmouth cases: All eight schools in the Ivy League are private. After Sacks’s initial ruling, the two athletes leading Dartmouth’s effort, Cade Haskins and Romeo Myrthil, announced plans to organize basketball players across the conference.

And another key difference: this era of college sports, in which athletes can earn money through name, image and likeness (NIL) deals - and in which the NCAA keeps losing in court.

In California, the NLRB is weighing whether the University of Southern California, the Pac-12 Conference and the NCAA are joint employers of USC’s football, men’s basketball and women’s basketball players, which could set new precedents for athletes at private and public schools. That could give it a much wider reach than the Dartmouth case. The NCAA, in turn, is begging for congressional help before the courts shatter what’s left of its model. But it’s running out of time.

There’s widespread belief that, not too far in the future, at least some athletes at some schools will be considered employees. How that might scale across the country, or how it might affect international athletes with student visas, are only two of the giant question marks.

“Let’s work together to create a less exploitative business model for college sports,” Haskins and Myrthil said in a joint statement Tuesday. “Over the next few months, we will continue to talk to other athletes at Dartmouth and throughout the Ivy League about forming unions and working together to advocate for athletes’ rights and well-being.”

With Dartmouth, the longer the appeals take, the better it is for the school’s and the NCAA’s agenda. November’s presidential election, very likely between President Biden and former president Donald Trump, could be an inflection point. Take what happened at the start of each of Trump’s and Biden’s first terms.

After former president Barack Obama’s appointed NLRB general counsel issued a memo in 2017 saying football players at Football Bowl Subdivision private schools were employees, Peter Robb, Trump’s appointee, rescinded it 11 months later. And when Biden took office in 2021, he immediately fired Robb, then replaced him with Jennifer Abruzzo, a strong advocate for unions and college athletes becoming employees. Peter Sung Ohr, whom Biden picked as deputy general counsel, was the regional director who ruled in favor of Northwestern’s players a decade ago.

The NLRB’s general counsel does not vote on board decisions. It does, however, tend to have a heavy influence on the process. Beyond that, the board’s majority typically mirrors the sitting president’s party (right now, there are three Democratic members, one Republican and one vacant Republican seat). Two of the Democratic members were appointed by Biden. If Trump wins, he would almost certainly replace Abruzzo and Ohr and flip the board’s makeup, though it’s unclear whether that would automatically work against the Dartmouth players.

Right before the NCAA changed its policy on whether athletes could profit off their NIL, Brett M. Kavanaugh, a Supreme Court justice appointed by Trump, wrote in his opinion for NCAA v. Alston (which the NCAA lost, 9-0): “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”

The NCAA, then, can’t always bank on the tacit support of conservative lawmakers. That said, some labor advocates argue that unionization would not be all bad for the NCAA. Collective bargaining between athletes and schools - or their conferences, or the NCAA itself – could offer the stability and antitrust protections Baker seeks. It would just also mean athletes could bargain over compensation and withhold their labor (strike) if negotiations stalled.

Would college athletes, with limited eligibility and dreams of turning pro, really go on strike? Should the NCAA embrace unionization and bet on reforming the landscape to its liking at the bargaining table?

Baker didn’t entertain that possibility, saying it would crush the 95 percent of schools that couldn’t pay athletes at least a minimum wage without major changes. There are complicated discussions for another day. On Tuesday, 15 college athletes formed a bargaining unit. And at 7 p.m., that unit will finish its basketball season by hosting Harvard at Leede Arena.