Abstract: Grant-in-aid athletes in revenue-generating sports at Division I National Collegiate Athletic Association (NCAA) institutions are not “student-athletes” as the NCAA asserts, but are, instead, “employees” under the National Labor Relations Act (NLRA). To be an employee under that Act, these athletes must meet both the common law test and a statutory test applicable to university students. In applying the common law test to athletes, we describe their daily lives through interviews with current and former Division I grant-in aid athletes. These interviews demonstrate that their daily burdens and obligations not only meet the legal standard of employee, but far exceed the burdens and obligations of most university employees. In addressing the statutory definition of the term employee, we demonstrate that the relationship between these athletes and their universities is not primarily academic, but is, instead, undeniably commercial. As employees under the NLRA, these athletes are entitled “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.” Consequently, they will be able to acquire bargaining power through collective association and to negotiate their terms and conditions of employment, including wages not arbitrarily limited to the level of athletic scholarships.This hard-hitting paper concludes:
To call NCAA Division I athletes in revenue-generating sports amateurs is farcical. The NCAA’s droning insistence on labeling them student-athletes” is done simply to shore up the fiction that they are something other than employees. NCAA rules, promulgated by the university-employers themselves, bar these athletes from earning compensation representing their true worth. Unaware of their market value, constrained by NCAA strictures, and raised in the myth of the student-athlete, they enter into servitude by the thousands every year. Thus, this fiction has worked to convince even the players themselves to bask in the bright, but brief, glow of their status as campus heroes, and has nurtured their unrealistic dreams of glory, obscuring the reality of their exploitation.I agree.
The power of myth is undeniable.406 It has served the economic interests of the NCAA and many other participants in major college sports richly. But the power of the law is also great, and a society that respects the law looks through the myth and the propaganda to facts. The rule of law eschews a “tyranny of labels”407 and seeks truth. And the truth is that these athletes are employees under the law.