For a team that loses more than it wins, Dartmouth College basketball players racked up two victories on March 5. They bested Harvard in the season finale and voted to be the first college athletes to unionize.

Voting 13-2, Big Green’s basketball players elected to join Service Employees International Union Local 560, which already represents other Dartmouth employees. The same day, Dartmouth College appealed the National Labor Relations Board (NLRB) decision that Dartmouth players are employees.

“Classifying these students as employees simply because they play basketball is as unprecedented as it is inaccurate,” Dartmouth said in a statement.

Dartmouth College argued unionization is not appropriate in part because, unlike other universities where athletics generate millions of dollars, the costs of Dartmouth’s athletics program far exceed any revenue. 

“Those arguments, I think, are phony arguments,” said Michael Hsu, a former University of Minnesota regent and co-founder of the College Basketball Players Association. “If you have unionized secretaries or even factory workers, you can’t make the argument that they don’t make money for the company, or they lose money for the company. So I think it’s a ridiculous proposition that they would use that argument. It doesn’t even have a meaningful example in the corporate world.”

Hsu has filed two charges with the NLRB against the NCAA and Northwestern’s use of the term, “student-athlete.”

The sordid past of ‘student-athlete’

“These boys are student-athletes. Student comes first,” Samuel L. Jackson said in the film, “Coach Carter,” portraying high school basketball coach Ken Carter, who famously locked out his players for performing poorly in academics.

But unlike the well-meaning characterization of the character Carter, the term student-athlete was not crafted to prioritize education.

“The term was created by Walter Byers, the first executive director of the NCAA in the 1950s,” Hsu said. “And they created the term to try and escape liability, legal liability.”

In 1955, Fort Lewis A&M football player Ray Dennison crushed his skull during a game and later died. His widow filed a claim for death benefits under workers’ compensation. The case made it to the Colorado Supreme Court, where the justices ruled the compensation fund did not extend to student-athletes. 

Byers — who made sure the term “student-athlete” was embedded throughout college sports — later renounced its use in his memoir, “Unsportsmanlike Conduct: Exploiting College Athletes.” The NCAA continues to use the term.  

NLRB General Counsel Jennifer Abruzzo warned in 2021 that where appropriate, she will allege that calling players student-athletes is a violation of the National Labor Relations Act.

NCAA’s plea to ‘save’ college sports

On the losing side of multiple lawsuits regarding college athletes’ amateur status, NCAA President Charlie Baker is asking Congress to take action to preserve college sports. 

“He’s basically admitting that they’re violating the law by saying that, but he’s saying, ‘Oh, we need a new law to make this okay and make it legal,'” Hsu said.

Baker claimed 95% of athletes’ opportunities would be endangered if athletes were considered school employees. Like Dartmouth, he’s arguing the vast majority of schools lose money on athletic programs and can’t afford to pay their players. This extends from small programs like those within the Ivy League Conference to Division II and Division III schools.

The NCAA continues to push Congress for a limited antitrust exemption to give it a break from the onslaught of lawsuits it now faces. As for Dartmouth and the fight against its basketball-playing employees, Hsu says that case will likely be appealed to the Supreme Court.