College Athletes as Employees: An Overflowing Quiver

BY STEVEN L. WILLBORN, 69 U. Miami L. Rev. 65 (2014).

Introduction: Kain Colter, a football player at Northwestern University, is currently at the center of the discussion about whether college athletes are employees. He has filed a petition with the National Labor Relations Board (“Board”) to recognize the College Athletes Players Association (“CAPA”) as the union representative of football players at Northwestern. Since the National Labor Relations Act (“NLRA” or the “Act”) governs only “employees” who want to organize, the Board will have to determine whether Northwestern football players fit within that category as it decides whether to proceed with Colter’s petition. He won the first skirmish in this battle when a regional director for the Board found that the players were employees and ordered a union election.

Colter’s petition threatens the long-standing position of the National Collegiate Athletic Association that college athletes are students, not employees. That contention is a fundamental feature of the structure of college athletics; if it fails, the organizational structure of all college athletics would have to be changed in many important ways. Perhaps most significantly, a decision that college athletes are employees would likely mean that the entire financial structure of college athletics would have to be rethought and reconstructed.

Despite its significance, Colter’s petition is quite narrow. It raises the issue in one narrow circumstance—whether football players at a major private university are “employees” under the NLRA. This is one arrow in Colter’s and CAPA’s quiver, but if they ultimately lose on this claim, then they have many other arrows in reserve. The “employee” issue can be raised in a myriad of other ways. For example, football players at public universities could seek union representation under state collective bargaining laws, any athlete could claim compensation for overtime under the Fair Labor Standards Act, an injured athlete could seek compensation under a state workers’ compensation statute, an athlete subject to sexual or racial harassment could file a claim under a state or federal employment discrimination law, or an athlete could claim a violation of the state’s wage payment law. A determination by the National Labor Relations Board in Northwestern’s favor (or Colter’s) would have virtually no legal effect on the outcome in any of these other areas. Instead, the “employee” issue could be raised independently in each of these areas (and many others). And, of course, in those areas that are subject to state law, there is no logical or legal reason that the result in one state must match the result in another state. Because of Colter’s highly publicized petition, most of the commentary about whether college athletes are employees has focused on unionization and the NLRA. But there are many other arrows in this quiver.

Because so many arrows are in the quiver, if they pursue it persistently, Colter and CAPA (or others) are likely to get some college athletes labeled as employees for some purposes, somewhere, sometime. This article is about why that is likely to be true. This article is not about how the NCAA should or will respond when one or more college athletes are determined to be employees. That is another article, and a longer one. The main point of this article, however, is that the NCAA should plan for that day because it is likely to arrive sooner or later. . . . Full Article.

Recommended Citation: Steven Willborn, College Athletes as Employees: An Overflowing Quiver, 69 U. Miami L. Rev.  65 (2014).

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