The Largest Wave in the NCAA's Ocean of Change: The "College Athletes are Employees" Issue Reevaluated

Marquette Sports Law Review Marquette Sports Law Review

Volume 33

Issue 2

Spring

Article 4

2023

The Largest Wave in the NCAA's Ocean of Change: The "College The Largest Wave in the NCAA's Ocean of Change: The "College

Athletes are Employees" Issue Reevaluated Athletes are Employees" Issue Reevaluated

Joshua Hernandez

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Joshua Hernandez,

The Largest Wave in the NCAA's Ocean of Change: The "College Athletes are

Employees" Issue Reevaluated

, 33 Marq. Sports L. Rev. 781 (2023)

Available at: https://scholarship.law.marquette.edu/sportslaw/vol33/iss2/4

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HERNANDEZ 33.2 6/20/2023 11:43 PM

THE LARGEST WAVE IN THE NCAA’S

OCEAN OF CHANGE: THE “COLLEGE

ATHLETES ARE EMPLOYEES” ISSUE

REEVALUATED

JOSHUA HERNANDEZ*

INTRODUCTION............................................................................................... 782

I. NATIONAL LABOR RELATIONS BOARD “EMPLOYEE” LEGAL LANDSCAPE 783

A. The Legal Standard for the Common Law Test .............................. 784

B. The Statutory Standard for Defining “Employee” ......................... 785

1. The Statutory Standard’s Landscape Up to Northwestern

University ............................................................................... 786

a. Northwestern University 2014 ........................................... 787

b. Northwestern University 2015 ........................................... 788

2. The Statutory Standard’s Landscape: Northwestern University to

Now ........................................................................................ 789

a. Columbia University .......................................................... 789

b. General Counsel Memorandums ....................................... 790

II. PRIOR RELEVANT LEGAL ANALYSIS REGARDING COLLEGE ATHLETES .. 791

A. In Pari Materia with Workers’ Compensation and The Fair Labor

Standards Act ............................................................................... 792

B. Joint Employer Argument Establishing NCAA and Conference

Accountability .............................................................................. 794

C. Brown University and Northwestern University Already Provide the

Solution ........................................................................................ 795

D. NCAA’s compensation restrictions Potentially Illegal Under

Antitrust Laws .............................................................................. 796

* Joshua H. Hernandez is an Associate Attorney in Reinhart Boerner Van Deuren s.c.’s Employee Benefits

Practice. He graduated magna cum laude from Marquette University Law School in 2022, with a Sports Law

Certificate from the National Sports Law Institute. This Article was originally written for Professor Paul M.

Anderson’s Sports Law Seminar Course. Josh would like to thank Professor Anderson for the dedication,

guidance and support he has given to Josh and Marquette’s Sports Law Program. In addition, Josh would also

like to thank the Frank C. Erwin Jr. Special Events Center. The ERC led to Josh’s passion for the law, and,

most importantly, led to him meeting his beautiful and brilliant wife.

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782 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

III. THE “COLLEGE ATHLETES ARE EMPLOYEES” ISSUE REEVALUATED ..... 797

A. College Athletes are “Employees” Under the NLRA ..................... 798

B. College Athletics’ Changing Legal Landscape and the Potential

Impacts ......................................................................................... 799

CONCLUSION .................................................................................................. 801

INTRODUCTION

In 2020, National Collegiate Athletic Association (NCAA) Division I

institutions saw their intercollegiate athletics revenues reach $15.7 billion.

This

revenue would have placed the NCAA 203rd on Fortune 500’s list of the largest

companies in America.

At the heart of the NCAA’s business lies the more than

170,000 college athletes who compete on 6,000 athletic teams at more than 350

Division I institutions.

These college athletes participate in sporting

competitions; in return they receive support that includes scholarships, stipends,

academic programs, and academic revenue distributions.

Most recently, in

National Collegiate Athletic Association v. Alston, the Supreme Court held

illegal the NCAA rules limiting education-related benefits (like those mentioned

above) made available to Division I football and basketball college athletes.

Some believe that the Supreme Court has not gone far enough.

Advertised as a “generational quarterback,” the Jacksonville Jaguars

selected Trevor Lawrence as the number one pick in the 2021 National Football

League Draft.

Lawrence reached this football peak after recording “one of the

most celebrated careers by a quarterback in college football history.”

During

his time in the NCAA, he led the Clemson Tigers to a National Championship,

was a Heisman trophy finalist, and served “as the face and voice of the sport”

for two seasons.

Lawrence put blood, sweat, and tears into his football work

1. Finances of Intercollegiate Athletics Database, NCAA, https://www.ncaa.org/sports/2019/11/12/

finances-of-intercollegiate-athletics-database.aspx (last visited May 2, 2023) (follow hyperlink; then choose

“Intercollegiate Athletics Revenue Items”; then choose 2020 from drop down menu).

2. Fortune 500 List of Companies 2020, FORTUNE, https://fortune.com/fortune500/2020/search/ (last

visited May 2, 2023).

3. Our Division I Story, NCAA, https://www.ncaa.org/sports/2021/2/16/our-division-i-story.aspx (last

visited May 2, 2023).

4. Id.

5. NCAA v. Alston, 141 S. Ct. 2141 (2021).

6. Kevin Patra, Trevor Lawrence Selected No. 1 Overall by Jaguars in 2021 NFL Draft, NFL (Apr. 29,

2021, 8:26 PM), https://www.nfl.com/news/trevor-lawrence-jaguars-selected-no-1-overall-2021-nfl-draft.

7. #16 Trevor Lawrence, CLEMSON FOOTBALL, https://clemsontigers.com/sports/football/roster/trevor-

lawrence/ (last visited May 2, 2023).

8. Id.

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2023] COLLEGE ATHLETES AS EMPLOYEES 783

and only received education-related benefits.

However, if Lawrence had been

paid like a traditional employee he could have made substantially more.

Recently, a study from the National Bureau of Economic Research estimated

that a starting quarterback (like Lawrence) could have plausibly received $2.4

million in compensation if college athletes could engage in collective

bargaining with their academic institutions.

While this would be the highest

compensation, the study also found that the lowest-paid players (back up

running backs and long snappers) could have possibly received $140,000.

However, this possibility is currently just a legal hypothetical. Under the

National Labor Relations Act (NLRA), college athletes are not legally

considered “employees” and cannot engage in collective bargaining.

Yet, the

legal landscape surrounding this conclusion has drastically changed over the

past five-to-seven years—putting the conclusion back at issue.

This paper will seek to answer whether recent judiciary and National Labor

Relations Board (NLRB) precedent and guidance establish a new argument for

college athletes to be considered “employees” under the NLRA. Part I reviews

the NLRB precedential landscape and regulatory persuasive guidance to

establish the NLRB’s current position. Part II addresses the relevant old

arguments pertinent to the question of whether college athletes can be

considered “employees” under the NLRA or any tangential law. Part III

contends that there is a straightforward argument that shows that college athletes

can be considered “employees” under the NLRA; but the changing college

sports landscape and potential impacts may raise questions as to whether college

athletes should be considered “employees.” Finally, this paper concludes that

while college athletes can be considered “employees” under the NLRA, public

policy favors the status quo until the stakeholders can agree on broad and agreed

upon rule changes.

I. NATIONAL LABOR RELATIONS BOARD “EMPLOYEE” LEGAL LANDSCAPE

The issue at hand can be boiled down to a most basic conflict between two

opposing labor parties—institutions that sponsor NCAA Division I athletic

9. Nancy Armour, Opinion: Everybody Except Trevor Lawrence Making Money Off His Clemson Career,

USA TODAY (Jan. 9, 2019, 11:27 AM), https://www.usatoday.com/story/sports/columnist/nancy-armour/20

19/01/08/everybody-except-trevor-lawrence-making-money-off-his-clemson-career/2515081002/.

10. Craig Garthwaite et al., Who Profits From Amateurism? Rent-Sharing in Modern College Sports 7

(Nat’l Bureau of Econ. Rsch., Working Paper No. 27734, 2020), https://www.nber.org/papers/w27734.

11. Id. at 37.

12. More specifically, in 2015 the NLRB declined jurisdiction in their Nw. Univ., 362 N.L.R.B. 1350,

1352 (2015), decision and declined to answer whether Northwestern University football players were

classified as employees under the NLRA. However, prior to reaching the NLRB, the Regional Director had

agreed that the college athletes were employees. Id. at 1350.

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784 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

teams and the college athletes who compete on those teams. Labor relationships

similar to this one may be recognized within a distinct category that Congress

has codified through the NLRA.

The NLRA differentiates labor from capital,

defines both “employer” and “employee,” and confers certain federal rights to

these categories.

Providing minimal insight, the NLRA defines an “employee”

as “any employee, and shall not be limited to the employees of a particular

employer, . . . but shall not include any individual . . . having the status of an

independent contractor, or any individual employed as a supervisor . . . .”

This

ambiguous statutory language forces the NLRB and the judiciary to rely on

common law principles to define “employee.” Further complicating the

situation is the fact that these entities have historically used a sub-rule when

deciding whether private university students

are “employees” (important here

as college athletes are university students).

Thus the rule, deciding which

university students constitute “employees,” is a two-part test—a common law

test and a university student statutory standard.

A. The Legal Standard for the Common Law Test

As the entity tasked with administering the NLRA, the NLRB’s primary

functions are “(1) ‘to determine and implement’ employee elections ‘as to

whether [employees] wish to be represented by a union;’ and (2) ‘to prevent and

remedy unlawful practices.’”

The NLRB does this by conferring federal rights

upon “employees.”

Thus, the NLRB first had to create a common law standard

to distinguish “employees” from “independent contractors.”

To do so, the

13. National Labor Relations Act, 29 U.S.C. § 151 (2023); see Brown Univ., 342 N.L.R.B. 483, 487-88

(2004) (stating that the “fundamental conflict between the interests of the employers and employees”

establishes the basis for the NLRA).

14. National Labor Relations Act, 29 U.S.C. §§ 152(2)-(3), 157 (2023).

15. Id. at § 152(3).

16. The NLRA only governs private entities, thus excluding public universities. However, the Act has

served as the basis of U.S. labor policy for nearly ninety years.

17. Robert A. McCormick & Amy Christian McCormick, The Myth of the Student-Athlete: The College

Athlete as Employee, 81 WASH. L. REV. 71, 92 (2006) (citing Brown Univ., 342 N.L.R.B. at 491).

18. Benjamin Feiner, Note, Setting the Edge: How the NCAA Can Defend Amateurism by Allowing Third-

Party Compensation, 44 COLUM. J.L. & ARTS 93, 104 (2020) (citing FREDERICK T. GOLDER & DAVID R.

GOLDER, LABOR & EMPLOYMENT LAW: COMPLIANCE & LITIGATION § 2.1 (3d ed. 2019)).

19. Specifically, the NLRA grants only employees “the right to self-organization, to form, join, or assist

labor organizations, to bargain collectively through representatives of their own choosing, and to engage in

other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” National

Labor Relations Act, 29 U.S.C. § 157 (2023).

20. Id. at § 152(3).

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NLRB adopted a “right of control” test for defining who are “employees.”

The

test is based on the common law doctrine of respondent superior.

Under this

reasoning, an independent contractor is a person who performs a task “by his

own methods, not subject to the control of the alleged employer,” while an

employee is “a person who is subject to the control of the employer” as to the

purpose, methods and means of one’s work.

Since this iteration of the

standard, Congress and the NLRB have endorsed the reasoning as the proper

measure of statutory coverage.

More recently, the NLRB has sporadically

considered the “economic realities” of the potential employer and employee

relationship.

While the right-of-control test remains the primary standard for

differentiating employees from non-employees,

the NLRB has occasionally

considered the “economic realities” involved. Specifically, the NLRB has

considered “the degree to which putative employees are economically

dependent upon an employer.”

This additional consideration has resulted in a

“blended approach” where both the NLRB and courts measure the degree of

controller an employer has over an alleged employee with the alleged

employee’s economic dependence on the employer.

This common law

approach usually serves as the standard for who constitutes an “employee.”

However, the NLRB has developed an additional statutory test that university

students must meet to be considered “employees” under the NLRA.

B. The Statutory Standard for Defining “Employee”

On a surface level, when university students receive academic scholarships

to perform teaching, research, or athletic services, it looks as if university

21. McCormick & McCormick, supra note 17, at 90 (citing Field Packing Co., 48 N.L.R.B. 850, 852-53

(1943); ROBERT A. GORMAN & MATTHEW W. FINKIN, BASIC TEXT ON LABOR LAW: UNIONIZATION AND

COLLECTIVE BARGAINING 38 (2d ed. 2004)).

22. McCormick & McCormick, supra note 17, at 91 n.80.

23. Id.

24. See id. at 91 (Congress expressly excluded independent contractors and backed the right of control

test in their 1947 Taft-Hartley Amendments to the Act); see also A. Paladini, Inc., 168 N.L.R.B. 952, 952

(1967) (“The Board has frequently held that, when persons are alleged to be independent contractors, the

determination requires the application of the ‘right of control’ test.”).

25. McCormick & McCormick, supra note 17, at 91-92 (citing A. Paladini, Inc., 168 N.L.R.B. at 952;

GORMAN & FINKIN, supra note 21, at 30).

26. Repeatedly, the NLRB underscores their standard. See e.g., Brown Univ., 342 N.L.R.B. 483, 490 n.27

(2004) (“Under the common law, an employee is a person who performs services for another under a contract

of hire, subject to the other’s control or right of control, and in return for payment.”).

27. McCormick & McCormick, supra note 17, at 92.

28. Id.

29. Id. at 92 (citing Brown Univ., 342 N.L.R.B. at 491).

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students satisfy the common law test for being “employees.” However, the

NLRB has not always seen it that way. Instead, when analyzing this question,

the NLRB has developed an additional statutory test that university students

historically have to meet to be considered “employees.”

This statutory

standard has changed over the NLRA’s history due to the NLRB’s contradictory

case precedent. This common law historical insight provides important

knowledge regarding the situation at hand involving college athletes. The

Northwestern University case sticks out as highly relevant because it was the

first case where the NLRB addressed a set of facts “involving college football

players, or college athletes of any kind.”

Because the Northwestern University

case directly addresses college athletes, the case serves as an important

historical benchmark for this issue.

Thus, this section will look at the statutory

standard’s landscape pre and post the Northwestern University decision.

1. The Statutory Standard’s Landscape Up to Northwestern University

The controversy over whether university students are “employees,” under

the NLRA, caught fire over twenty years ago with the NLRB’s New York

University decision.

Reversing twenty-five years of NLRB precedent, the

NLRB decided that graduate assistants were “employees.”

The NLRB rejected

the argument that because “graduate assistants may be ‘predominately

students,’ they cannot be statutory employees.”

Instead, the NLRB favored an

argument based in the “traditional master-servant relationship” standard, in line

with the traditional common law “right of control” rule.

However, the NLRB

did an about face only four years later.

In Brown University, the NLRB considered whether teaching assistants,

research assistants, and proctors were “employees” under the NLRA.

The

NLRB ultimately agreed with Brown University’s argument

and found that

the “relationship between a research university and its graduate students”

30. Id.

31. Nw. Univ., 362 N.L.R.B. 1350, 1352 (2015).

32. Id. at 1350.

33. N.Y. Univ., 332 N.L.R.B. 1205, 1205 (2000).

34. Id. at 1205.

35. Id.

36. Id. at 1205-06 (citing N.L.R.B. v. Town & Country Elec., Inc., 516 U.S. 85, 91 (1995)).

37. Brown Univ., 342 N.L.R.B. 483, 483 (2004).

38. The University argued that the NLRB was not “adequately consider[ing] that the relationship between

a research university and its graduate students is not fundamentally an economic one but an educational one.

Id. at 486.

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2023] COLLEGE ATHLETES AS EMPLOYEES 787

dictates that graduate student assistants are not employees.

By doing so, the

NLRB supported a “primarily students” principle in which they highlighted

some key factors:

(1) the research assistants were graduate students enrolled in

the Stanford physics department as Ph.D. candidates; (2) they

were required to perform research to obtain their degree; (3)

they received academic credit for their research work; and (4)

while they received a stipend [], the amount was not dependent

on the nature or intrinsic value of the services performed or the

skill or function of the recipient, but instead was determined by

the goal of providing the graduate students with financial

support.

By focusing on this “primarily students” principle, the NLRB completely

avoided the common law “right of control” test.

More direct to the college

athlete issue, the NLRB declined to answer whether college athletes are

“employees” in their Northwestern University decision.

Thus, Northwestern

University’s case history provides valuable insight.

a. Northwestern University 2014

In 2014, College Athletes Players Association (CAPA) petitioned the

NLRB in hopes of the NLRB recognizing that Northwestern University football

players are employees under Section 2(3) of the NLRA because they receive

grant-in-aid scholarships.

Regional Director Peter Sung Ohr initially ruled that

“players receiving scholarships from the Employer are ‘employees’” and were

able to conduct an election to unionize and bargain collectively.

When coming

to that decision, Director Ohr found that the statutory definition of “employee”

articulated in Brown University

was “inapplicable in the instant case because

the players’ football-related duties are unrelated to their academic studies.”

39. Id. at 486-88.

40. Id. at 487.

41. Richard T. Karcher, Big-Time College Athletes’ Status as Employees, 33 ABA J. LAB. & EMP. L. 31,

38 (2018)

42. Nw. Univ., 362 N.L.R.B. 1350, 1352 (2015).

43. Nw. Univ. Emp. & Coll. Athletes Players Ass’n, 198 L.R.R.M. (BNA) ¶ 1837, at *1 (Mar. 26, 2014).

44. Id. at 2.

45. Brown Univ., 342 N.L.R.B. 483, 486-87 (2004).

46. Nw. Univ. Emp. & Coll. Athletes Players Ass’n, 198 L.R.R.M. (BNA) at *18.

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788 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

Ohr further stated that this outcome would still hold if Brown University’s

statutory definition were applicable.

Within this dicta, Director Ohr references his belief that (1) “scholarship

players are [not] ‘primarily students;’” (2) football players’ athletic duties create

a relationship that is not “primarily an academic one;” (3) “academic faculty

members do not oversee the athletic duties that the players’ perform;” and that

(4) the form of compensation involved is based in a scholarship for academic

services quid pro quo and not “financial aid.”

Based on this analysis, Ohr

found that “players receiving scholarships to perform football-related services

for the Employer under a contract for hire in return for compensation are subject

to the Employer’s control and are therefore employees within the meaning of

the Act.”

Even though the Northwestern Football team did vote to unionize,

those results were never made public as the Regional Director’s decision was

immediately appealed.

b. Northwestern University 2015

On appeal in 2015, the NLRB noted that “it would not effectuate the policies

of the [NLRA] to assert jurisdiction” even if the grant-in-aid scholarship players

were to be considered “employees” within the meaning of Section 2(3) of the

NLRA.

By refusing to answer whether these players are considered

“employees,” the NLRB utilized their ability to decline asserting jurisdiction.

When coming to this conclusion, the NLRB referenced the fact that the NCAA

Division I Football Bowl Subdivision (FBS) exercises large amounts of control

over individual teams and that the majority of FBS competitors, 108 of the 125

members, are public colleges and universities.

This reasoning led the NLRB

to decide that “it would not promote stability in labor relations to assert

jurisdiction in this case.”

While declining to assert jurisdiction, the NLRB did

acknowledge that because scholarship players are both students and athletes,

receiving scholarships to participate in an extracurricular activity, they are

“materially set[] apart from the Board’s student precedent.”

This statement,

47. Id.

48. Id. at 18-20.

49. Id. at 14.

50. Nw. Univ., 362 N.L.R.B. 1350, 1350 (2015).

51. Id. The NLRB chose not to answer this question.

52. NLRB v. Denv. Bldg. & Const. Trades Council, 341 U.S. 675, 684 (1951).

53. Nw. Univ., 362 N.L.R.B. at 1351-52.

54. Id. at 1352.

55. Id. at 1353.

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2023] COLLEGE ATHLETES AS EMPLOYEES 789

while dicta, raises the question as to whether these college athletes are subject

to the Brown University’s statutory definition of “employee.”

As a result of this ruling, college athletes have yet to be considered

“employees” under the NLRA.

However, this effort broadened the discord

about how to value student labor and may lead to other college athletics groups

organizing and pushing for employee rights and protections under labor and

employment laws.

Although the NLRB failed to provide an answer, the

Northwestern University case serves as an important benchmark in time as the

case directly acknowledged the issue for the first time. Since this case, there

have been notable developments.

2. The Statutory Standard’s Landscape: Northwestern University to Now

While the NLRB has not heard another case directly relating to college

NCAA Division I athletes, there have been new developments regarding the

statutory standards for university students

as well as relevant NLRB General

Counsel guidance.

a. Columbia University

The pertinent legal landscape was further shaken in 2016 when the NLRB

reversed their Brown University decision in Columbia University.

Here, the

NLRB found that student assistants were “employees” based on the belief that

“the Act’s text supports the conclusion that student assistants who are common-

law employees are covered by the Act, unless compelling statutory and policy

considerations require an exception.”

In coming to this conclusion, the NLRB

cited Brown University dissenters stating that the majority in that case “erred ‘in

seeing the academic world as somehow removed from the economic realm that

56. Brown Univ., 342 N.L.R.B. 483, 487 (2004).

57. Adam Epstein & Paul M. Anderson, The Relationship Between a Collegiate Student-Athlete and the

University: An Historical and Legal Perspective, 26 MARQ. SPORTS L. REV. 287, 296 (2016).

58. Kati L. Griffith & Leslie C. Gates, Milking Outdated Laws: Alt-Labor as a Litigation Catalyst, 95

CHI.-KENT L. REV. 245, 268 (2020).

59. Columbia Univ., 364 N.L.R.B. 1080 (2016).

60. See generally Memorandum GC 17-01 from Richard F. Griffin, Jr., General Counsel on the Statutory

Rights of University Faculty and Students in the Unfair Labor Practice Context (Jan. 31, 2017) [hereinafter

Memorandum GC 17-01]; see generally Memorandum GC 21-08 from Jennifer A. Abruzzo, Statutory Rights

of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act (Sept. 29,

2021) [hereinafter Memorandum GC 21-08].

61. Columbia Univ., 364 N.L.R.B. at 1080.

62. Id. at 1085.

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790 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

labor law addresses.’”

The court even went as far as stating that the Brown

University decision was based on “policy concerns . . . not derived from the Act

at all.”‘

By backtracking on the Brown University case, the NLRB essentially

unified the common law test and statutory standard definitions of an

“employee.”

The NLRB articulated this view when they stated that when

“student assistants have an employment relationship with their university under

the common law test . . . the student assistant is a Section 2(3) employee for all

statutory purposes.”

While this case liberalizes the NLRA definition of an

“employee,” the NLRB reiterated that just because students are considered

“employees” does not mean that the NLRB will exercise jurisdiction.

In doing

so, the NLRB cited their Northwestern University decision as not contradicting

with their current analysis.

While the NLRB, in Columbia University, did not decide the question of

whether college athletes are “employees,”

the NLRB’s Office of the General

Counsel has recently made arguments that certain Division I FBS college

athletes should be considered “employees.”

b. General Counsel Memorandums

In 2017, because the Northwestern University case “did not directly address

the right of workers . . . to seek protection against unfair labor practices,” the

Office of the General Counsel provided a Report [GC Memo 17-01] to explain

how they “will apply [Northwestern University] in the unfair labor practice

arena.”

Within this Report, the NLRB referenced the Northwestern University

record, other public information, and the Columbia University decision to

“conclude that scholarship football players in Division I FBS private sector

colleges and universities are employees under the NLRA, with the rights and

protections of that Act.”

Further, GC Memo 17-01 again snubbed any previous

statutory standard in favor of the “common-law agency rules governing the

63. Id. at 1082 (citing Brown Univ., 342 N.L.R.B. 483, 494 (2004) (dissent of Member Liebman and

Member Walsh)).

64. Id.

65. Columbia Univ., 364 N.L.R.B. 1080, 1085 (2016).

66. Id. at 1083.

67. Id. at 1086 n.56.

68. Id.

69. See generally id.

70. Memorandum GC 17-01, supra note 60, at 23.

71. Id. at 1.

72. Id. at 16 (again they make the distinction between public and private universities).

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2023] COLLEGE ATHLETES AS EMPLOYEES 791

conventional master-servant relationship.”

The General Counsel reiterated

their opinion in 2021 when the Office reinstated and reaffirmed GC Memo 17-

01.

In 2021, the Office of the General Counsel issued a new Report [GC Memo

21-08] that reinstated GC Memo 17-01 and also “provide[d] updated guidance

regarding [the General Counsel’s] prosecutorial position that certain Players at

Academic Institutions are employees under the Act.”

With GC Memo 21-08,

the General Counsel basis their non-precedential opinion on GC Memo 17-01

reasoning, “developments in the case law and [NCAA] rules related to Players

at Academic Institutions, [] contemporaneous societal shifts,”

and other forms

of purely persuasive evidence.

Also important to note, the General Counsel

again pointed out that college athletes at state universities “would not be

protected by the Act, which expressly excludes state and local governments

from the Board’s jurisdiction.”

While these General Counsel Memorandums

hold no precedential value, the fact that the General Counsel has prosecutorial

power provides enough reasoning to acknowledge their position on the issue.

Though, the fact that the President appoints the NLRB General Counsel to a

four-year term leaves this body’s guidance susceptible to position flip-flopping

whenever there is a change in administration.

As seen, the surrounding legal landscape is murky at best. NLRB precedent

has switched multiple times over the last twenty years and the NLRB’s

regulatory persuasive guidance has failed to establish any clarity. This has led

to the continuation of the status quo. However, legal scholars and courts have

danced around potential solutions, regarding the college athletes as “statutory

employees” issue, through tangential laws and creative theories.

II. PRIOR RELEVANT LEGAL ANALYSIS REGARDING COLLEGE ATHLETES

Some argue that college athletes deserve to be compensated for the work

they provide to colleges and universities. Yes, the NLRB dictates whether

college athletes are “employees” under the NLRA. However, gaining

employment rights through the NLRA is not the only avenue for college athletes

73. Id. at 18.

74. Memorandum GC 21-08, supra note 60, at 1.

75. Id.

76. Id. at 2.

77. Id. at 5, 7 (referencing dicta from Nat’l Collegiate Athletic Ass’n v. Alston, social justice activism

following the murder of George Floyd, and concerns in the face of the COVID-19 pandemic.).

78. Id. at 8 n.33. However, the General Counsel does throw their weight behind the “joint employer”

theory of liability, infra, Section II(B), as an avenue to pursue charges against athletic conferences or the

NCAA even though those entities have member schools that are state institutions. Id. at 9 n.34.

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792 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

to reach this goal. Instead, legal scholars have speculated ways for college

athletes to achieve this end through differing means. While certain theories hold

more water than others, the courts have broadly held with the status quo.

A. In Pari Materia with Workers’ Compensation and The Fair Labor

Standards Act

College athletes have attempted to secure additional employment-based

benefits through avenues outside of the NLRA. Two of these avenues include

workers’ compensation laws

and the Fair Labor Standards Act (FLSA).

When it comes to workers’ compensation law claims, the most notable case in

the field is Waldrep v. Texas Employers Insurance Association.

While enrolled

at Texas Christian University (TCU), Alvis Waldrep became paralyzed below

the neck after sustaining a spinal cord injury in a football game against the

University of Alabama.

Waldrep filed a workers’ compensation claim that the

Texas appellate court ultimately upheld the denial of.

The appellate court

based their decision on the belief that Waldrep was not an employee under the

relevant law.

In upholding the jury’s finding that Waldrep was not an

employee of TCU at the time of his injury, the appellate court affirmed that no

contract of hire was formed between Waldrep and TCU, and that if there was,

it did not give TCU the right to direct the means or details of Waldrep’s work.

Otherwise, rather straightforward, the appellate court created ambiguity when

they stated that their decision was based on the circumstances that existed in

1974 and that the outcome could be different if heard today.

There has been

even more discourse surrounding how college athletes are categorized under the

FLSA.

Under the FLSA, employees are provided a range of employment rights and

protections that include minimum wage requirements and overtime

compensation.

College athletes first attempted to gain these rights in Berger

v. National Collegiate Athletic Association.

There, two former track-and-field

79. Epstein & Anderson, supra note 57, at 297.

80. See, e.g., Waldrep v. Tex. Emps. Ins. Ass’n, 21 S.W.3d 692 (Tex. App. 2000).

81. Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (2023).

82. Waldrep, 21 S.W.3d. at 692.

83. Id. at 696.

84. Id. at 704-07.

85. Id.

86. See Waldrep v. Tex. Emps. Ins. Ass’n, 21 S.W.3d 692, 697-98, 701-02 (Tex. App. 2000).

87. Id. at 707.

88. Fair Labor Standards Act of 1938, 29 U.S.C. §§ 206(a), 207(a)(1) (2023).

89. Berger v. NCAA, 843 F.3d 285 (7th Cir. 2016).

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athletes from the University of Pennsylvania sought class-action status to sue

their University, the NCAA, and all NCAA Division I member schools for

violating “the FLSA by not paying their athletes a minimum wage.”

Their suit

ultimately failed when the Seventh Circuit Court of Appeals found that

“student-athletic ‘play’ is not ‘work,’ at least as the term is used in the FLSA.”

However, Judge Hamilton’s concurring opinion has given slim hope for future

FLSA claims from Division I men’s basketball and FBS football college athletes

against the NCAA and its members schools.

Lamar Dawson took up that hope when he brought suit against the NCAA

and the Pac-12 Conference, but not his own school, the University of Southern

California (USC), alleging violations of the FLSA.

Given Dawson’s

unwillingness to sue USC, the Ninth Circuit found that the economic reality of

Dawson’s relationship with the NCAA and Pac-12 “does not reflect an

employment relationship.”

However, the court stated that deciding whether

Dawson, as a college athlete, was an employee is a question “left, if at all, for

another day.”

Further, the court limited their holding as not “express[ing] an

opinion about student-athletes’ employment status in any other context.”

Thus, the Ninth Circuit again provided hope for potential future college athlete

FLSA claims.

Given this hope, legal scholars have theorized that a positive outcome in an

FLSA case is possible, and that the NLRB may revisit their Northwestern

University decision in response.

If not, courts finding that college athletes are

“employees” under the FLSA may lead to renewed unionization and collective

bargaining efforts.

In certain FLSA

and NLRB

100

claims, college athletes

have used the joint employer argument to further their employment rights goals.

90. Id. at 289.

91. Id. at 293.

92. Id. at 294 (Hamilton, J., concurring) (“I am less confident, however, that our reasoning should extend

to students who receive athletic scholarships to participate in so-called revenue sports like Division I men’s

basketball and FBS football.”).

93. Dawson v. NCAA, 932 F.3d 905, 907 (9th Cir. 2019).

94. Id. at 909.

95. Id. at 907.

96. Id. at 913-14.

97. Sam C. Ehrlich, The FLSA and the NCAA’s Potential Terrible, Horrible, No Good, Very Bad Day, 39

LOY. L.A. ENT. L. REV. 77, 109 (2019).

98. Id. at 109-10.

99. See, e.g., Dawson v. NCAA, 932 F.3d 905, 908 (9th Cir. 2019); Johnson v. NCAA, 561 F. Supp. 3d

490, 495 (E.D. Pa. 2021).

100. See, e.g., N. Am. Soccer League v. NLRB, 613 F.2d 1379, 1380-81 (5th Cir. 1980).

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B. Joint Employer Argument Establishing NCAA and Conference

Accountability

Recently, legal scholars theorized a way that both private and public

Division I college athletes could argue that they should be considered

“employees.” The basis of this argument was that the NCAA and a college

athlete’s respective universities are “joint-employers” in the eyes of the NLRB

or the FLSA.

101

As an example, Lamar Dawson used this argument in his FLSA

claim against the NCAA and the Pac-12.

102

To test whether two entities are joint

employers for the same individual, some courts will use “four factors, referred

to as the Enterprise test.”

103

Those four factors include the “authority to hire and

fire . . . employees,” the “authority to promulgate work rules and assignments

and to set . . . conditions,” “involvement in day-to-day employee supervision,”

and “control over employee records . . . .”

104

Other courts consider “the control

which one employer exercises, or potentially exercises, over the labor relations

policy of the other.”

105

When it comes to the NLRA and the NLRB’s opinions, the definition of a

joint employer has recently expanded

106

and then narrowed.

107

Due to the

transition from President Obama to President Trump, and the subsequent

changes to the NLRB members, the joint employer argument may have become

implausible due to a new stricter standard.

108

However, even under this new

standard, legal scholars have argued that “the NCAA is likely a joint employer

under the narrower ‘strict control’ test.”

109

Further, now with the change from

President Trump to President Biden, the NLRB has shown a potential interest

in changing the joint employer standard again.

110

While it is unclear what that

standard will be, it is predicted that the NLRB will liberalize the rule by not

101. Jay D. Lonick, Note, Bargaining With the Real Boss: How the Joint-Employer Doctrine Can Expand

Student-Athlete Unionization to the NCAA as an Employer, 15 VA. SPORTS & ENT. L.J. 135, 155 (2015);

Andrew McInnis, Comment, Play Under Review: How the NLRB Failed to Protect Some of the Most

Vulnerable Employees—College Athletes, 2018 MICH. ST. L. REV. 189, 193-94 (2018).

102. Dawson v. NCAA, 932 F.3d at 908.

103. Johnson v. NCAA, 561 F.3d at 500.

104. Id. (citing In re Enterprise Rent-A-Car, 683 F.3d 462, 469-70 (3rd Cir. 2012)).

105. Id. at 505.

106. Lonick, supra note 101, at 165-66.

107. McInnis, supra note 101, at 248050.

108. Id.

109. Roberto L. Corrada, College Athletes in Revenue-Generating Sports as Employees: A Look into the

Alt-Labor Future, 95 CHI.-KENT L. REV. 187, 210 (2020).

110. Mark Theodore et. al, NLRB Plans to Revise Joint Employer Standard Once Again, LAB. RELS.

UPDATE (Dec. 15, 2021), https://www.laborrelationsupdate.com/uncategorized/nlrb-plans-to-revise-joint-

employer-standard-once again/.

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requiring “joint employer[s] to actually exercise control over employment

conditions, as long as the company possesses such authority.”

111

It may take a

change in NLRB leadership or high-level judicial review to implement joint

employer based solutions. However, some scholars argue that the Brown

University and Northwestern University decisions already solve the purpose

issue.

C. Brown University and Northwestern University Already Provide the

Solution

Due in part to the uncertain and ambiguous legal history regarding college

athletes as “employees,” some scholars have argued that no change in current

precedent is needed to succeed in litigation. Instead, those scholars argue that

college athletes can be considered statutory employees under the Brown

University

112

standard and that NLRB’s refusal to assert jurisdiction in

Northwestern University leaves the Regional Director’s pro-“employee”

reasoning intact.

113

When it comes to Brown University, scholars had theorized well before the

Northwestern University decision that college athletes would meet the NLRB’s

university student statutory standard from Brown University.

114

The basis of this

argument is that “[t]he relationship between employee-athletes and their

universities . . . is nearly exclusively economic, or commercial” which makes

these individuals “employees” under the NLRA.

115

The very argument was

addressed in Northwestern University (2014) when the Regional Director noted

that if considered, Northwestern’s players would be deemed “employees” based

on the Brown University statutory standard.

116

However, the Director did find

that “this statutory test is inapplicable . . . because the players’ football-related

duties are unrelated to their academic studies unlike the graduate assistants

whose . . . duties were inextricably related to their graduate degree requirements

111. Id.

112. McCormick & McCormick, supra note 17, at 154. The court in Northwestern University alluded to

this when they stated that “[u]nlike those graduate assistants, the scholarship players are undergraduates, and

. . . the football activities they engage in are unrelated to their course of study or educational programs.” Nw.

Univ., 362 N.L.R.B. 1350, 1353 n.10 (2015).

113. Robert L. Corrada, The Northwestern University Football Case: A Dissent, 11 HARV. J. SPORTS &

ENT. L. 15, 37 (2020); see also Karcher, supra note 41, at 45.

114. McCormick & McCormick, supra note 17, at 119-54.

115. Id. at 130.

116. Nw. Univ. Emp. & Coll. Athletes Players Ass’n, 198 L.R.R.M. (BNA) ¶ 1837, at *22 (Mar. 26,

2014).

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796 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

. . . .”

117

Again, this raises the question as to whether college athletes would even

be held to the Brown University’s statutory definition of “employee.”

Other scholars have latched onto Director Ohr’s pro-“employee” reasoning,

coupled with the fact that the NLRB refused to assert jurisdiction in

Northwestern University (2015), to argue that college athletes can already be

considered statutory employees.

118

Even more telling, these scholars have

recognized that Columbia University overrules and replaces Brown University’s

student statutory standard.

119

Thus, Brown University’s statutory standard has

been replaced with a liberalized definition of “employee” in line with the

common law definition.

120

While this standard has become less restrictive,

antitrust law may be a quicker catalyst for college athletes to reach their

employment rights goals.

D. NCAA’s compensation restrictions Potentially Illegal Under Antitrust Laws

There have been interesting developments in antitrust law that may soon

impact employment rights for college athletes. Historically, the Supreme Court

had afforded the NCAA broad freedoms under antitrust law due to the belief

that “[i]n order to preserve the character and quality of [college sports], athletes

must not be paid, must be required to attend class, and the like.”

121

When the

Court came to that decision, in National Collegiate Athletic Association v.

Board Of Regents, they even stated that “the preservation of the student-athlete

in higher education adds richness and diversity to intercollegiate athletics and

is entirely consistent with the goals of the Sherman Act.”

122

However, the

Supreme Court in National Collegiate Athletic Association v. Alston has

recently degraded this amateurism defense to mere dicta and instead focused on

a careful analysis of market realities when answering whether an antitrust

violation exists.

123

In doing so, the Court held illegal the NCAA rules limiting

education-related benefits made available to Division I football and basketball

college athletes.

124

While that holding is important in its own right, Justice

Kavanaugh’s concurring opinion provides rather sharp persuasive critiques that

deserve recognition.

125

117. Id. at *18.

118. Corrada, supra note 113, at 37; Karcher, supra note 41, at 45.

119. Corrada, supra note 113, at 27 n.62; Karcher, supra note 41, at 46.

120. Columbia Univ., 364 N.L.R.B. 1080, 1083 (2016).

121. NCAA v. Bd. of Regents, 468 U.S. 85, 102 (1984).

122. Id. at 120.

123. NCAA v. Alston, 141 S. Ct. 2141, 2158 (2021).

124. Id. at 2166.

125. Id. (Kavanaugh, J., concurring).

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Justice Kavanaugh places the rest of the NCAA’s competition rules, “those

[that] . . . generally restrict student athletes from receiving compensation or

benefits,” in the crosshairs when he states that they “also raise serious questions

under the antitrust laws.”

126

Important to our college athletes as “employees”

issue is Justice Kavanaugh’s proposed exceptions to the NCAA’s arguably

illegal business model.

127

Specifically, Kavanaugh recognizes that, “absent

legislation or a negotiated agreement between the NCAA and the student

athletes,” the NCAA’s compensation rules may lack legal legitimacy.

128

While

potential antitrust legislation may lead to positive or a negative outcomes for

college athletes,

129

Justice Kavanaugh’s recognition of negotiations through

collective-bargaining as a possible legal solution may place pressure on the

NLRB or the NCAA to establish employment rights for college athletes. Thus,

future antitrust court decisions may lead the NLRB to recognize college athletes

as “employees” under the NLRA or the NCAA may achieve a similar end

through willingly negotiated means.

While the NLRB dictates whether college athletes are “employees” under

the NLRA, gaining employment rights through the NLRA is not the only avenue

for college athletes to reach their employment rights goals. For our issue, the

easy assumption is that until the NLRB effectuates their opinion from GC Memo

20-08, college athletes will not be recognized as “employees” under the NLRA.

As for the other avenues to effectuate employment rights, courts have

historically been consistent in finding that “student-athletes are not recognized

as employees under any legal standard.”

130

Even with this legal stance,

persuasive arguments regarding whether college athletes are “employees” under

the differing standards will persist.

III. THE “COLLEGE ATHLETES ARE EMPLOYEES” ISSUE REEVALUATED

The NLRB’s precedential legal landscape post Northwestern University

establishes an argument for private institution Division I college athletes, both

in revenue and non-revenue sports, to be considered “employees” under the

NLRA. However, public policy may favor the status quo until broad and agreed

upon rule changes can be enacted.

126. Id. at 2166-67.

127. Id. at 2167.

128. Id. (emphasis added).

129. See infra Section III(B).

130. Epstein & Anderson, supra note 57, at 297.

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A. College Athletes are “Employees” Under the NLRA

In actuality, the legal argument for college athletes to be considered

“employees” under the NLRA has become rather straightforward. As

established, the NLRB created a university student sub-rule when it comes to

deciding whether these individual students are “employees” under the NLRA.

131

Due to the NLRB’s holding in Northwestern University, and the NLRB’s

subsequent Columbia University decision, private institution college athletes

have no issue meeting this sub-rule. This is due to the fact that Columbia

University essentially unified the common law test and the statutory standard.

132

This can be seen when the NLRB stated that when “student assistants have an

employment relationship with their university under the common law test . . .

the student assistant is a Section 2(3) employee for all statutory purposes.”

133

This means that college athletes only need to meet the NLRB’s “right of

control” test while potentially having the “economic realities” of the

relationship considered.

134

This standard is so liberalized that it is not an issue

for college athletes to meet. Further, even if Columbia University were to not

exist, and the Brown University statutory standard stood in the way, college

athletes would also meet that more stringent statutory burden.

135

Thus,

unification of the standard broadens who is considered an employee under

Section 2(3) of the NLRA and encompasses all college athletes. However, as

the NLRB

136

and the Office of the General Counsel

137

have mentioned, the

NLRA explicitly exempts federal, state, and local government entities, such as

public schools

138

(which make up the majority of NCAA Division 1

institutions). So, public university college athletes would still be barred from

utilizing the NLRA to establish employment rights for themselves. In addition,

as the NLRB mentioned in Columbia University, just because college athletes

are considered “employees” does not mean that the NLRB will exercise

jurisdiction.

139

This has been the proverbial nail in the coffin that plays the larger

role in preventing the NLRB from recognizing college athletes as “employees”

under the NLRA.

131. McCormick & McCormick, supra note 17, at 92-93.

132. Columbia Univ., 364 N.L.R.B. 1080, 1085 (2016).

133. Id. at 1083.

134. See supra Section I(A).

135. Nw. Univ. Emp. & Coll. Athletes Players Ass’n, 198 L.R.R.M. (BNA) ¶ 1837, at *15 (Mar. 26,

2014).

136. Nw. Univ., 362 N.L.R.B. 1350, 1352 (2015).

137. Memorandum GC 17-01, supra note 60, at 20.

138. National Labor Relations Act, 29 U.S.C. § 152(2) (2023).

139. Columbia Univ., 364 N.L.R.B. 1080, 1086 n.56 (2016).

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While college athletes may be considered “employees,” the NCAA’s

private and public institution structure has essentially stonewalled the NLRB

from acting. The NLRB stated as much when they referenced the fact that 108

of the NCAA’s 125 members are public colleges and universities’ thus in their

view, “it would not promote stability in labor relations to assert jurisdiction.”

140

Even if this lack of asserting jurisdiction argument is valid,

141

the NLRB’s

decision to do so deserves similar criticism as the Brown University dissenters

placed on that decision’s majority.

142

Specifically, that the “majority’s policy

concerns are not derived from the Act at all, but instead reflect an abstract view

about what is best for American higher education—a subject far removed from

the Board’s expertise.”

143

Explicitly, the NLRB has placed “promot[ing]

stability in labor relations,” between the NCAA and their member institutions,

ahead of the NLRB’s primary functions—(1) “‘to determine and implement’

employee elections ‘as to whether they wish to be represented by a union’; and

(2) ‘to prevent and remedy unlawful practices.’”

144

In withholding jurisdiction

in Northwestern University, and in turn not providing NLRA protections to

college athletes, the NLRB is effectively promoting and stabilizing unlawful

employment practices by private institutions for the sole reason that public

institutions are allowed to conduct themselves in that manor.

Yet, even with this harsh critique, there may be reasons beyond the “lack of

asserting jurisdiction” argument that justify inaction by the NLRB, at least in

the short term.

B. College Athletics’ Changing Legal Landscape and the Potential Impacts

Given the NCAA’s changing landscape, centered on name, image, and

likeness (NIL),

145

COVID-19, and social justice, and the inhospitable NLRB

legal landscape,

146

major policy questions arise as to whether collegiate athletes

should be considered “employees.” Thus, while private institution Division I

college athletes, both in revenue and non-revenue sports, can be considered

140. Nw. Univ., 362 N.L.R.B. at 1351-52.

141. See Corrada, supra note 113, at 32 (“In any case, the decisions cited in Northwestern University do

not support the Board’s contention that it has independent jurisdictional discretion in individual cases beyond

analyzing the employer’s impact on commerce.”).

142. Brown Univ., 342 N.L.R.B. 483, 494 (2004) (dissent of Member Liebman and Member Walsh).

143. Id. at 497.

144. Benjamin Feiner, Comment, Setting the Edge: How the NCAA Can Defend Amateurism by Allowing

Third-Party Compensation, 44 COLUM. J.L. & ARTS 93, 104 (2020).

145. See Ian K. Schumaker & Leeann M. Lower-Hoppe, The Right Way to Pay Intercollegiate Student-

Athletes: A Legal Risk Analysis, 23 UNIV. DENV. SPORTS & ENT. L.J. 45 (2020).

146. Memorandum GC 21-08, supra note 60, at 5.

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800 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

“employees,” public policy may dictate the maintenance of the status quo until

enough pressure is placed on the NCAA to change rules at the Divisional level.

First, the NLRB’s appointment structure, as well as congressional and legal

uncertainty, create a legal landscape that may produce piecemeal

implementation not conducive to college athlete utilization of the NLRA. One

or two states could create chaos by amending state labor law to permit collective

bargaining rights to grant-in-aid athletes at public universities.

147

In the

opposite, lawmakers from Michigan and Ohio already introduced bills that

would make college athlete unionization illegal.

148

More uniformly, Congress

could amend the NLRA and prevent unionization at both public and private

institutions. The NLRB could directly decide a case in favor of a college

athlete’s labor rights under the NLRA. Or the NLRB could even tighten the

student statutory standard back to the Brown University standard to obscure the

situation further. All of these possibilities play directly into the historically

uncertain legal landscape and would create problems for college athletes, their

academic institutions, and the NCAA.

Second, any of the prior relevant legal arguments leading to college athletes

gaining employment rights through other avenues outside of the NLRA could

happen. As previously stated, a positive outcome in an FLSA case could lead to

the NLRB revisiting their Northwestern University decision.

149

If not, courts

finding that college athletes are “employees” under the FLSA may lead to

renewed unionization and collective bargaining efforts.

150

In addition, a new

effort to renew the joint employer argument

151

could always lead to the NCAA,

their conferences, or public institutions becoming susceptible to FLSA and

NLRA claims. Or the Supreme Court could decide to take another college

athlete case and find that limits on non-academic benefits to college athletes run

afoul of antitrust law.

152

In doing so, it could become beneficial for the NCAA

to engage college athletes in collective bargaining as protection from alleged

antitrust law violations.

153

147. Michael H. LeRoy, Harassment, Abuse, and Mistreatment in College Sports: Protecting Players

Through Employment Laws, 42 BERKELEY J. EMP. & LAB. L. 117, 149 (2021).

148. Karcher, supra note 41, at 47; George J. Bivens, Comment, NCAA Student Athlete Unionization:

NLRB Punts on Northwestern University Football Team, 121 PENN ST. L. REV. 949, 973 (2017).

149. Ehrlich, supra note 97, at 109-10.

150. Id.

151. Theodore et. al, supra note 110.

152. See NCAA v. Alston, 141 S. Ct. 2141, 2166-67 (2021) (Kavanaugh, J, dissenting).

153. Karcher, supra note 41, at 34–36; Ehrlich, supra note 97, at 110-11; Schumaker & Lower-Hoppe,

supra note 145, at 63-67; Nicholas C. Daly, Comment, Amateur Hour Is Over: Time for College Athletes to

Clock In Under the FLSA, 37 GA. ST. UNIV. L. REV. 471, 531-32 (2021).

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2023] COLLEGE ATHLETES AS EMPLOYEES 801

Third, if pandora’s box were to be opened, and the NLRB decided to

consider college athletes as “employees,” there may be undesirable

consequences. The major consequence is the common argument that

unionization would burden schools so much that institutions would be left with

insufficient revenues to adequately fund their non-revenue generating sports.

154

This could strip athletic and academic opportunities to large amounts of college

athletes. In addition, there may be some NLRA, FLSA, or even antitrust law

ramifications that hurt college athletes. If college athletes gain “employee”

status under the NLRA, there could be even greater amounts of scholarship

revocations due to injuries or performance issues and would cut against the

NCAA’s academic focus. In regard to the FLSA, colleges and universities could

likely show that fringe benefits, like housing, meals, medical coverage, and

certain other in-kind compensation, could be considered “pay” under FLSA’s

federal wage and hour laws.

155

This could lead institutions to cut back on these

fringe benefits, potentially making the everyday life harder for the majority of

college athletes. As to antitrust law, collective bargaining rights go both ways

which could lead to undesirable outcomes for college athletes like lock outs or

increased regulations.

The NCAA’s changing legal landscape and the potential positive and

negative ramifications to action create a tinderbox that may hurt all involved

stakeholders. The gist of the situation is that uncertainty defines the future—

unless collective action is taken. Thus, it is this uncertainty that should escalate

the desire, if not need, for college athletes, academic institutions, and the NCAA

to work together on a solution. There must be change, and the implementation

of regulations in favor of college athlete labor rights at the Divisional level may

be the most equitable and universally accepted option.

CONCLUSION

Unequivocally, post Northwestern University precedent establishes an

argument for private institution Division I college athletes, both in revenue and

non-revenue sports, to be considered “employees” under the NLRA. The

driving factor in this conclusion is the NLRB, by their Columbia University

decision, unifying the common law test and the university student statutory

standard definition of “employee.”

156

This unification of the standard broadens

who is considered an employee under Section 2(3) of the NLRA and now

includes college athletes. Yet, as the NLRB mentioned in Columbia University,

154. See, e.g., Bivens, supra note 148, at 977; Schumaker & Lower-Hoppe, supra note 145, at 56-58.

155. Sam C. Ehrlich, “But They’re Already Paid”: Payments In-Kind, College Athletes, and the FLSA,

123 W. VA. L. REV. 1, 58 (2020).

156. Columbia Univ., 364 N.L.R.B. 1080, 1085 (2016).

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802 MARQUETTE SPORTS LAW REVIEW [Vol. 33:2

just because they are considered “employees” does not mean that the NLRB will

exercise jurisdiction.

157

This “lack of asserting jurisdiction” argument tarnishes

any persuasive argument from the NLRB’s Office of the General Counsel or

legal scholars. It also dampens the possibility of the NLRB meaningfully ruling

in favor of college athlete labor claims.

Additionally, just because Division I college athletes at private institutions

can be considered “employees” does not mean that they should be. The potential

for piecemeal implementation, rapidly changing NLRB precedent, and

preemptory congressional action creates a very inhospitable legal landscape for

college athlete utilization of the NLRA. Further, pressures from workers’

compensation and FLSA claims, a reestablished joint employer argument, or

illegality under antitrust laws may incentivize the NLRB or the NCAA to act on

the issue at hand. However, there could also be unexpected or unintended

negative consequences for collegiate athletes. Thus, this legal uncertainty and

potential outside pressure should escalate the desire, if not need, for college

athletes, academic institutions, and the NCAA to work together and implement

regulations in favor of college athlete labor rights at the Divisional levels.

Without this, college athletes may have to wait years if not decades for change,

academic institutions may have to stay in perpetual fear of an unofficial strike,

and the NCAA could have another NIL fiasco on their hands. Now is the time

for the NCAA to utilize their freedom to enact pro-employment rights changes,

before the judiciary, the NLRB, or legislatures take away that power or act first.

As of today, Division I college athletes, both in revenue and non-revenue

sports, can be considered “employees” under the NLRA. However, the

stakeholders involved must come to a joint resolution as the public policy

consequences of inaction outweigh the benefits of an NLRB positional change.

The NCAA must recognize the “college athletes are employees” tidal wave

cresting on their ocean of change. If the NCAA chooses inaction, their entire

institutional structure may be swept away.

157. Id. at 1086 n.56.