On March 5, the 15 players on Dartmouth men’s basketball team will vote on whether Service Employees International Union Local 560 represents them as a union. The election will take place on Dartmouth’s campus in Hanover, New Hampshire. While the outcome—widely expected to be in the affirmative—might not be made public until a later date (more on that below), it will send shock waves through college sports.
The recognition of at least some Division I athletes as unionized school employees increasingly appears a matter of when, not if. The road there will run through an Ivy League school.
For now, Dartmouth College has until Feb. 20 to file a request for review (i.e., appeal) NLRB Regional Director Laura Sacks’ Feb. 5 decision to order a union election. Dartmouth is all but certain to appeal, which would be decided by the agency’s board in Washington D.C. 

To gain more time to hone arguments and to push the timeline back, Dartmouth could request an extension on the Feb. 20 deadline. The timing of an appeal wouldn’t change the March 5 vote date. Until the vote, Dartmouth must refrain from conduct that unduly pressures players, such as enlisting coaches, athletic staff and faculty to make promises to players in exchange for “no” votes.

Dartmouth will need to prove Sacks erred when concluding the players are employees within the meaning of the National Labor Relations Act, a federal law that governs private universities. Sacks emphasized the players perform work for Dartmouth in exchange for compensation and the school has the right to control that work. Her conclusion closely followed NLRB general counsel Jennifer Abruzzo’s 2021 memo urging the recognition of DI athletes as employees.
If Dartmouth appeals and if the players vote to unionize, the players could then demand that Dartmouth negotiate a collective bargaining agreement. If the school declined, the union could file an unfair labor practice charge for refusal to bargain. 
A more likely scenario is Dartmouth appeals and requests a measure from the NLRB to defer the vote’s impact. Not only does Dartmouth contend the players are non-employees, but as a member of the NCAA and Ivy League, the school is contractually barred from paying players. 
In that light, Dartmouth could seek a stay (postponement), which would table the vote taking effect until after Dartmouth’s appeal is decided. Alternatively, the school could ask the NLRB to impound (keep in private) the union vote until after the appeal is decided. In either scenario, Dartmouth wouldn’t be obligated to bargain with the players’ union for the foreseeable future. 
The timing of when the board would decide the appeal is unknown and could be a game changer. 
In 2014, Chicago-based NLRB regional director Peter Sung Ohr found that Northwestern football players were employees. The school appealed to the agency’s board a couple of weeks later. From the date of the appeal to the date the board sided with Northwestern, 495 days (about 16 months) passed.

If the board takes a similar amount of time with Dartmouth’s appeal, a decision would be issued around June 2025. 
Obviously, there’s a big event taking place between now and then: the presidential election on Nov. 5, 2024. 
Although neither President Joe Biden nor the presumptive Republican nominee, former President Donald Trump, has clarified their views about college athletes as employees, each’s choice of NLRB general counsel is more telling. 
In January 2017, NLRB general counsel Richard Griffin, who had been appointed by then-President Barack Obama, issued a memo stating scholarship football players at DI FBS private schools “are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation.” Trump’s NLRB general counsel, Peter Robb, rescinded Griffin’s memo that December. 
When Biden took office in January 2021, he fired Robb after Robb refused to resign. A month later Biden nominated Abruzzo, whom the U.S. Senate confirmed in July. Meanwhile, Biden picked Ohr as NLRB deputy general counsel. Biden’s NLRB general counsel and deputy counsel are advocates of the position sought by Dartmouth players.
If Trump is elected this November, he’ll likely “clean house” at federal agencies, including independent ones like the NLRB. He would be poised to replace Abruzzo and Ohr with more management-friendly picks. The new leadership team could rescind Abruzzo’s 2021 order and advocate college athletes aren’t employees. 
That’s a potentially big deal. 
Although the general counsel doesn’t vote on board decisions, the GC is considered highly influential in board decision-making. The GC provides advice and recommendations. The back-and-forth of NLRB positions on divisive topics is also not a new phenomenon: Whether graduate students who teach are school employees has been answered alternatively with “no” and “yes” during the presidencies of George W. Bush, Obama, Trump and Biden. 
Do the Dartmouth players’ chances therefore hinge on the outcome of the 2024 presidential election?
It’s not so simple for at least seven reasons.
First, the board could move with relative haste and decide the appeal before Trump (if elected) is sworn in as the nation’s 47th president on Jan. 20, 2025. The board currently has four members and one vacancy. Three are Democrats, including former MLBPA general counsel David Prouty. It is a favorable group for the Dartmouth players.
Second, it’s not clear Republican or conservative NLRB officials—or even Trump himself—would be on Dartmouth’s side. The NCAA’s advocacy of the “student-athlete” no longer enjoys deference in administrative and legal circles. Lately some of the NCAA’s harshest critics have been Republican-nominated judges, including U.S. Supreme Court justices Samuel Alito, Neil Gorsuch, Clarence Thomas, Amy Coney Barrett and—most outspokenly—Brett Kavanaugh in NCAA v. Alston (2021). 
More recently, U.S. District Judge Clifton Corker, a Trump appointee, bluntly rebuked NCAA restrictions on NIL for recruitment of athletes in Tennessee & Virginia v. NCAA. Corker suggested the restrictions unduly interfere with the market. Meanwhile, many Democratic-nominated judges, most notably U.S. District Judge Claudia Wilken who is presiding over In Re College Athlete NIL Litigation (a.k.a. House v. NCAA), frequently opine NCAA rules conflict with basic antitrust doctrine. It’s unclear who is on the NCAA’s side.
Third, it was telling how extensively Sacks’ order co-opted the language and viewpoints of the players’ lead advocate, SEIU 560 attorney John Krupski. The order read as if Sacks didn’t find the decision difficult at all. When they hear an appeal, board members might feel similarly.
Fourth, Sacks carefully limited the relevance of the NLRB’s 2015 decision in Northwestern. There, the board declined to assert jurisdiction in part because Northwestern is the only private college in the Big Ten. Employment matters at public universities are governed by state labor laws. 
In other words, if the board had recognized Northwestern players as employees, players at Michigan, Ohio State and Iowa would not also have become employees. Their status would have depended on state labor laws. The board found this arrangement problematic, observing pro sports usually entails leaguewide bargaining. The board, which only has control over private employers, couldn’t bring about that outcome. 
As Sacks explained, Dartmouth doesn’t face that hurdle. The Ivy League only has private college members. If the board finds Dartmouth players are employees, the same would be true of other Ivy League athletes in basketball and possibly other sports.
Fifth, Sacks clarified that profitability and revenue generation—key issues in the Northwestern matter—aren’t disqualifying factors for Dartmouth players. There is no legal requirement a business be profitable for a worker to be considered an employee. Even if Dartmouth loses money on its basketball team (a matter of empirical debate), that wouldn’t render the players non-employees. 
Some have asked why Dartmouth basketball players would be considered employees when they play in a conference that prohibits athletic scholarships and when their team—the Big Green (1-6) are currently in last place—isn’t an NBA pipeline. 
The answer: Those aren’t determining factors. As Sacks explained, what matters is the degree to which Dartmouth has the capacity to control the players and whether players play in exchange for compensation. 
To that end, Sacks detailed how the team urges players to avoid scheduling classes that conflict with basketball responsibilities. Players spend numerous hours on games, practicing, lifting, reviewing film, signing autographs, conducting media interviews, promoting the team on social media and partaking in team travel during which they’re under tight team control. Sacks also found it instructive from a control-standpoint how coaches discipline players (head coach David McLaughlin described it as holding players accountable) by making them run when one player is late. 
Players are also directed to interact with alumni like fundraising staff. “The basketball program,” Sacks wrote in her order, “clearly generates alumni engagement—and financial donations.” Sacks also repeatedly referred to testimony by forward Cade Haskins, who detailed how players meet with alumni. Haskins also explained how he’s a Dartmouth employee when working at the alumni front desk or in the dining hall, where fellow student employees have unionized and bargain with Dartmouth. 
Sacks reasoned that players are paid to play, even without athletic scholarships. They’re recruited for basketball reasons and then placed in a favorable admissions pool. Even if a player quits the team in his first semester, he’s guaranteed need-based financial aid. Absent flunking out, dropping out or being expelled, a player who enters Dartmouth through basketball will graduate. The players also receive valuable equipment and apparel, including expensive sneakers, as well access to athletic facilities, meals, tickets and lodging.
Sixth, while Dartmouth could challenge a board decision before a U.S. Court of Appeal and later the U.S. Supreme Court, it’s not clear why those forums—where rules restraining college athletes have been critiqued of late—would be receptive. Dartmouth would stress decisions by the U.S. Court of Appeals for the Ninth Circuit (Dawson v. NCAA, 2019) and the Seventh Circuit (Berger v. NCAA, 2016) denying college athletes employment recognition because their primary relationship to their schools is academic, and they don’t expect to be paid. However, those rulings were made before Alston and NIL, when judges seemed more favorable to NCAA positions.
Seventh, Dartmouth shouldn’t hold out hope Congress will save the day via legislation barring college athletes as employees. While Congress has held numerous hearings on NIL and related issues, it’s yet to advance a bill to a vote. Particularly in an election year where members will be away from D.C. to campaign for themselves or as surrogates for others (including Biden and Trump), it’s unlikely solutions rest in D.C.
The solutions are probably instead in Indianapolis. 
NCAA president Charlie Baker sees what is happening. There are NLRB petitions involving Dartmouth and USC athletes and growing list of serious litigations, including Johnson v. NCAA, In Re College Athlete NIL Litigation, Ohio v. NCAA, Tennessee & Virginia v. NCAA, Carter v. NCAA, and Hubbard v. NCAA. Unless NCAA attorneys improbably run the table and defeat all these challenges, major change is coming.
A former governor and one-time Harvard basketball player, Baker is neither beholden to the NCAA’s past nor responsible for historic losses in O’Bannon v NCAA and Alston and a fumbled approach to NIL. As evidenced by his recent proposal for players to be paid, Baker is trying to be a change agent. 
Baker might come to support recognition of college athletes as employees and, if players unionize, support bargaining CBAs, through which the non-statutory labor exemption would take antitrust law off the board. The NCAA, conferences and schools could still owe players (and their lawyers) many millions of dollars for past harms but the world going forward would be calmer and predictable.
The alternative: Wait for a judge to tell Baker and the NCAA the changes they must make and then wait for other judges to order even more changes.