Sportico has obtained a memorandum emailed by a Dartmouth College athletic department official to the 15 members of the men’s basketball team on Wednesday, ostensibly to inform players on certain topics ahead of the team’s union election next week, but which contains positions that are legally debatable.

On behalf of the school, executive associate athletics director Taurian Houston offers to help players “make an informed decision” when they vote March 5 on whether Service Employees International Union Local 560 represents them as a union.

Under labor law, Dartmouth has the right to express accurate information and share opinions with the players before they vote. However, the school can’t threaten the players or engage in other conduct that could be deemed an unfair labor practice. 

The one-page memo, which explains that a union would be established by a majority of those who vote, strikes a friendly note at the start. “As students,” Houston writes, “you are, first and foremost, part of our shared Dartmouth community.”

That statement is a reminder that Dartmouth basketball players becoming employees wouldn’t render them non-students; Dartmouth, like other colleges, employs students and some of them have unionized and negotiated terms of employment with their employer/school. 

The memo also noticeably doesn’t call the players “student-athletes,” the NCAA’s preferred moniker and a term rebuked by NLRB general counsel Jennifer Abruzzo when used to deny players of employment rights. Instead, the memo simply calls the players “students.”

The bulk of the memo is devoted to three bolded topics: “Union Election,” “Ivy League Play” and “International Students.”

The Union Election section warns that if the players unionize, “all members of the team become part of the collective bargaining unit, leaving any individual student disagreeing with that outcome without any right to remove himself from the Union.” It also states that the union would exclusively represent the players with the school and coaches on “all matters” related to employment. 

These points are intended to suggest that players would lose individual autonomy by unionizing. The reference to coaches seems especially noteworthy since players might wonder how a union would impact their individual relationships with coaches. 

One rebuttal is that unionized employees in America have long interacted with bosses without their union playing a day-to-day role. NBA players, who are members of the NBPA, and their coaches discuss all facets of playing basketball, including those related to playing time and player development, without union involvement.

The NBPA can get involved if a player is disciplined in ways he believes are unfair or violate rules. The same would be true for Dartmouth players. In her Feb. 5 order, NLRB regional director Laura Sacks regarded Dartmouth coaches’ current punishment of players as indicative of employment. For instance, the coaches have required the entire team “to run because a single player has missed a practice.”

Another rebuttal is that the bargaining unit would be run by the players, who would elect their own bargaining team. Players seem unlikely to pursue positions that would be detrimental to their own interests, including their relationships with fellow students, coaches and school officials. In addition, the Local 560 doesn’t have any staff—it’s member-driven and grassroots, so no union officials from far away would decide anything for the players.

Under the Ivy League play heading, the memo makes the point that if the union and Dartmouth agree to rules that “do not align with the Ivy League and NCAA’s rules,” Dartmouth could be deemed ineligible. This point captures how NCAA and conference rules prohibit pay-for-play, rules that would be violated if Dartmouth and the players’ union agree on players receiving a wage. But it’s less certain how the conference and NCAA would respond—especially since those rules might themselves be illegal. 

To that point, the Ivy League’s prohibition on athletic scholarships (the conference only permits need-based aid for athletes) is currently at issue in a federal antitrust lawsuit (Choh v. Brown), and the NCAA’s prohibition on pay-for-play is being challenged in a different federal antitrust lawsuit (Carter v. NCAA). The NCAA has also struggled in court in recent years to defend restrictions on player compensation, most recently in Tennessee & Virginia v. NCAA, where a federal judge ordered the NCAA to lift its NIL-recruiting ban. The NCAA and Ivy League taking enforcement action against a member on grounds it is violating a membership rule could in turn trigger a review of the rule itself. The SEIU has also pledged to pay for a lawsuit if the NCA or Ivy League exclude Dartmouth for paying players.

Meanwhile, other negotiated areas of employment would likely comply with NCAA and Ivy League rules. For instance, Dartmouth and the union could agree to limit work hours to 20 hours a week. That is generally the limit the NCAA uses for “countable athletically related activities,” so it wouldn’t violate NCAA rules. A labor agreement could also clarify athletes’ health care rights, insurance, support services, gear and right to speech without running afoul of membership rules.

In the International Students section, the memo warns that reclassification of team activities as employment activities would place “international students” on the team “at risk of noncompliance with F-1 visa requirements.” Those requirements limit work to 20 hours per week and “work” must be on campus. Dartmouth warns coaches “would be forced to consider reduced playing, travel, and/or practice time” to ensure international players don’t violate their F-1 visa.

Like the first two points, the third is vulnerable to counter-arguments. 

For example, Dartmouth and the union could negotiate a set amount of payment for 20 hours a week of work and exclude travel from the working time. This is one of the ways bargaining could serve the interests of both the players and the school, by giving more stability and rule clarity.

Some of the players have also observed that their student manager, although he is not an international student, is paid by the school to work his job for 20 hours a week—and yet he attends all practices and games, and he travels with the team. So, the 20-hour number appears obtainable. 

Language from U.S. Immigration and Customs Enforcement might also suggest the F-1 visa requirement can be met. In response to the question, “Where can on-campus jobs be located,” ICE says “the job must be physically located on the school’s campus or off-campus at the site of an educationally affiliated organization.” F-1 visas also allow international students to work 40 hours a week when classes are not in session, which at Dartmouth includes from around Thanksgiving to early January—a stretch of time when many games take place.

It’s also possible that if the Ivy League and NCAA were deemed joint employers of Dartmouth basketball players—a separate NLRB petition involving USC football and men’s and women’s basketball players contends USC, the Pac-12 and NCAA are joint employers—they could be responsible for some of the employment.