Grant-Final Amateurism is Dead in College Football

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Amateurism is Dead in College Football: Student-Athletes Are University Employees
I. Overview: “Every time I try and call it a business you say it’s a game and every time
I say it should be a game you call it a business.”1
“Big time” college athletes, specifically National Collegiate Athletic Association (NCAA)
Division I football players, who play revenue generating sports are not amateur athletes but are
university employees in accordance with the National Labor Relations Act (NLRA) found at 29
U.S.C. § 151-169. A brief background will be given on what amateurism is and why this ideal
should not be a part of the NCAA’s lexicon. The origin of the term “student-athlete” will be
investigated. This thesis will explore why the NCAA spends a great deal of time and money
persuading college fans and athletes alike, that college athletes are students first and athletes
second. Next, this thesis will demonstrate why these athletes are neither amateurs nor primarily
student-athletes. After demonstrating that these athletes are not amateurs, and using the NLRA,
as well as case law, this paper will explain why these athletes should be referred to as university
employees or employee athletes. Finally, the conclusion will explain the real reason college
athletes attain small victories against the NCAA ruling authority, but at every turn seem to lose
ground and remain victims of a system that refuses to treat their employees fair while continuing
to benefit financially by exploiting the talents these college athletes possess.
II. Introduction: “The boys go out and earn millions for their University. Everyone
benefits except the players.” Bobby Bowden.2
1 Robert A. McCormick & Amy Christian McCormick, The Myth of the Student-Athlete:The College Athlete as
Employee, 81 Wash.L. Rev. 72 (2006).
2 Id. at 156.

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For the love of the game, this is why student-athletes play. For the love of the game, this
is why fans watch college football and other major college sporting events. The fans cheer their
teams to victory and reminisce about the past, when college life was parties, dates, and Saturday
afternoon football games. College football fans bathe themselves in the purity of these student-
athletes playing for the love of the game. There is something unsullied about competition free
from the ties of money in college sports. There is something about an athlete only playing a sport
as a hobby.3 College football is even better when the student-athletes enjoying their hobby are
really, really good.
As the ruling authority, the NCAA supports learning through sports by integrating
athletics and higher education to enrich the college experience of student-athletes.4 In order to
“create the framework of rules for fair and safe competition” the NCAA’s amateurism policy
must remain active.5 Founded in 1905 and known as the Intercollegiate Athletic Association, the
now NCAA developed rules for college football programs at a time when injuries were high and
universities were bringing in nonstudent ringers to compete against rival schools.6
The NCAA and their member schools make a great deal of money. The corporate
sponsors make even more money than the schools. These financial gains provide student-athletes
with athletic scholarships, and the opportunity to display their talents before their prospective
future employer. The NCAA spends over $2.7 billion to assist its participating schools in
3 Patrick Hruby, The Olympics Show Why College Sports Should Give Up on Amateurism, available at
http://www.theatlantic.com/entertainment/archive/2012/07/the-olympics-show-why-college-sports-should-give-up-
on-amateurism/260275/
4 Taylor Riskin, Student-Athletes put Full-Court Pressure on the NCAA for Their Rights, 15 J. Marshall Rev. Intell.
Prop. L. 296 (2016).
5 Id.
6 O’Bannon v. NCAA, 802 F.3d 4, (U.S. App. 2015).

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supporting their student-athletes.7 The financial and educational benefits provided to the players
by the NCAA outweigh the need to change their status from student-athletes to employees.
The term “student-athletes” identifies these college players first as students and then as
athletes. These are college students, who, in an effort to enhance their college experience,
participate in intercollegiate sports. They participate in the sport of their choosing because they
love that sport. Therefore, it is the duty of the NCAA and their university to maintain the
amateur status of all student-athletes, and to discourage any attempt to identify these athletes as
employees.
Student-athletes are neither primarily students nor amateur athletes. These athletes are
employees of their universities. The NCAA believes big time college sports must maintain a
clear delineation between collegiate and professional sports because there is an educational
component.8 The NCAA attempts to maintain the distinction by holding on to and enforcing its
very strict, jellyfish solid amateurism rules.
The idea of amateurism in the NCAA is a joke.9 While the NCAA, their affiliated
universities, and corporate sponsors count the millions of dollars they make each year from the
talents of the student-athletes, the NCAA controls and inhibits the actions of the athletes with a
set of rules as thick as a telephone book so their abilities can be cornered, marketed, and sold by
the school.10 These amateur, student-athletes are being compensated with “full” athletic
scholarships. These “full scholarships” are one year scholarships that have to be renewed
annually, and can be revoked for any reason (including injuries or personality conflict) and the
7 Riskin, supra, at 293.
8 Hruby, supra.
9 Dick Harmon: College amateurism outdated like Olympics,available at
www.deseretnews.com/article/765592754/College-amat.
10 Id.

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players have no insurance against losing their scholarship if they incur a permanent injury.11 To
say student-athletes are being compensated with an education when so many of them do not
graduate is a farce.12 Players endorse products, serve as billboards for shoe companies, are
featured in video games, and participate in school fundraisers where they sign autographs and
gear on behalf of the school.13 None of this resulting revenue goes to the student-athlete except
in the form of scholarships that do not cover the entire cost of attending college. It should be
noted that in 2014, the NCAA authorized their member schools to increase scholarships up to
the full cost of attendance.14
The joke of amateurism gets funnier when we realize that [former NCAA president]
Myles Brand said the notion of amateurism has outlived its usefulness within the NCAA, and
there is no “agreed-upon working definition of the concept” of amateurism within the NCAA.15
Ruling in the O’Bannon v. NCAA matter, concerning the NCAA’s stance on amateurism, Judge
Wilken wrote, “ …the NCAA has revised its rules governing student-athlete compensation
numerous times over the years, sometimes in significant and contradictory ways. Rather than
evincing the association’s adherence to a set of core principles, this history documents how
malleable the NCAA’s definition of amateurism has been since its founding.”16
Student-athletes are not students seeking the enjoyment of a life enriched through a
vibrant college experience. They are athletes attending college on an athletic scholarship hoping
11 Cecil A. Grant Jr., Student Athletesshould be paid to play, (April 9, 2012) (unpublished manuscript) (on file with
author).
12 Elaine McArdle, Pay for Play, 65 Harv. L. Rev. 26 (2014).
13 Patrick Hruby, The Olympics Show Why College Sports Should Give Up on Amateurism, available at
http://www.theatlantic.com/entertainment/archive/2012/07/the-olympics-show-why-college-sports-should-give-up-
on-amateurism/260275/
14 O’Bannon 802 F.3d at 6.
15 Hruby, supra.
16 Stewart Mandel, O’Bannon ruling dealscrushing end to amateurism in NCAA athletic, available at
http://www.foxsports.com/college-football/story/o-bannon-decision-deals-decisive-end-to-amateurism-in-ncaa-
athletics-080814

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to make it to the ranks of a professional athlete. While the focus of this paper is on Division I
football players, Division I basketball helps make this point crystal clear. Most gifted college
basketball players are drafted into the National Basketball Association (NBA) after one year of
college; however, they do not learn anything in one year of college, or “enjoy a life enriched
through a vibrant college experience,” especially when they spend most of that year playing
basketball.17
At Brown University, where athletic scholarships are not offered, Nick Hartigan who
holds the Ivy League record for career rushing touchdowns said the fact he was a football player
controlled every single aspect of his life for the four years he was at Brown.18 Continuing, he
laments, “It really is a full-time job while you are there.”19 Student-athletes are not amateurs
and are not receiving the educational benefits the university has to offer. For example, many
student-athletes are told they cannot take courses that will conflict with their practice
schedule.20 Knowing that ninety-eight percent of the student-athletes never make it to the
professional ranks forces these players to make a decision about their education that will affect
the rest of their life.21
III. Background: “ Student athletes are amateurs in an intercollegiate sport, and their
participation should be primarily motivated by education and the physical, mental,
and social benefits. Student participation in intercollegiate athletics is an avocation
and student-athletes should be protected from exploitation by professional and
commercial enterprises.”22
17 McArdle, supra.
18 Id.
19 Id.
20 Id.
21 Id.
22 Tyler Dumler, Amateurism Interplay Between Olympic Excellence and NCAA Eligibility,15 U. Denv. Sports &
Ent. Law J 27 (2013).

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Amateurism and amateur status are key buzzwords used by the NCAA to maintain a financial
grip on revenue generating collegiate sports. By manipulating their rules, the NCAA makes a
desperate attempt to convince both fans and players that there is a level of reverence and purity
when watching or playing competitive athletics as amateurs. The NCAA makes every attempt to
convince the public that “amateur competition is a bedrock principle of college athletics.”23 The
NCAA contends that amateurism has been one of its core principles since its founding and that
amateurism is a key driver of college sports’ popularity with consumers and fans. 24The NCAA
ties the rope of amateurism tightly around the necks of athletes who want to play Division I,
revenue generating, college football. The NCAA Bylaws declare, “Only an amateurs student-
athlete is eligible for intercollegiate athletics participation in a particular sport.”25 The Bylaws
clearly state a student-athlete must retain “amateur” status because the NCAA considers amateur
competition a core principle for college athletics.26 The NCAA constructs this clear delineation
between amateur and professional sports because their primary goal is to place “academics and a
well-rounded education above athletics.”27
One misconception about amateurism in the NCAA is that student-athletes do not receive
some type of compensation. College athletes receive scholarship funds, which are used to help
defer the cost of their college education. These scholarship funds are given to student-athletes
based only on athletic ability.28 Remuneration for amateur athletes is even supported by The
Amateur Sports Act of 1978 that administers a trust fund allowing amateur athletes to receive
23 NCAA definition of amateur, http://www.ncaa.org/student-athletes/future/eligibility-center
25 Riskin, supra. at 283.
26 Id. at 284.
27 Id.
28 http://legal-dictionary.thefreedictionary.com/Amateur+Athletes

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funds and sponsorship payments without losing their amateur status.29 Over time, that definition
of amateur was revised. The NCAA’s definition of amateurism is viewed as “malleable,”
changing frequently in significant and contradictory ways and is not in fact, a “core principle” of
the NCAA.30
A new version of amateur was formulated in old England. According to Olympic historian,
Bill Mallon,
“Amateurism really started when the (unwashed day-laboring masses), who were
rowing boats on the Thames for a living started beating all the rich British aristocrats.
That wasn’t right. So they started a concept of amateurism that didn’t exist in ancient
Greece, extending it more and more to the notion of being a gentleman, someone who
didn’t work for a living and only did sport as a hobby.”31
This concept was copied by a host of American schools, which gave birth to college sports.32
Historians say the NCAA had its roots in this idea, which had less to do with lofty purism of
amateurism than it did with enforcing a social caste system.33
Recent case law shows that the NCAA’s rules have been more restrictive than necessary
to maintain a tradition of amateurism in support of the college sports market.34 Now, in the
NCAA, amateurism bans any interaction or any type of pay from a professional team, prize
money above actual and necessary expenses, benefits from agents or prospective agents, and
delayed initial full-time collegiate enrollment to participate in organized sports competitions.35
The NCAA pledges its loyalty to amateurism through the creation of the 15-3a Form where
student-athletes pledge their commitment to amateurism.36 This is the NCAA’s attempt to protect
29 Id.
31 Harmon, supra.
32 Id.
33 Id.
35 Riskin, supra. at 283.
36 Id. at 288.

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the brand and through amateurism, allow student athletes to gain a college education while using
the skills they receive from playing competitive sports to help them excel in a future career.37
Pure amateurism is an ideal the NCAA clings to; however, it is an ideal that has fallen
victim to giant corporations and the allure of ever growing profits that fill the pockets of
whomever will worship the false idol of amateurism.38 Once the NCAA accepts the fact that
amateurism in the purist form has not been a part of college sports for years, and they remove the
chains of amateurism from the student-athlete, one can begin to view the athletes as employees
of their respective universities.
The NCAA’s crafted term “student-athlete” needs to be removed. The term “student-
athlete” was born of the NCAA’s swift and alarmed reaction to a judicial determination in 1953
that certain college athletes were employees and entitled to statutory benefits under state law.39
The case in point was University of Denver v. Nemeth, whereby the Colorado Supreme Court
upheld that Ernst Nemeth, a football player at the University of Denver, was an “employee” thus
obligating the university to provide workers’ compensation for his football injuries.40 By
emphasizing the identity of athletes as “students,” the NCAA endeavored to diminish any
tendency to characterize them as “employees.”41 In 1956, universities were offering full athletic
scholarships, but realized that allowing full scholarships as compensation for athletic services
could reveal the employer-employee-like nature of the college athlete relationship that would
expose these universities to liability for workers’ compensation.42
37 Id.
38 R. Emmett Tyrrell, Jr., Olympic ideal of Amateurism, available at http://www.nysun.com.opinion/olympic-ideal-
of-amateurism/63995/
39 McCormick & McCormick. supra at 83.
40 Id.
41 Id. at 84.
42 Id.

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A continued revision of terms geared towards keeping athletes from being identified as
employees appeared in 1963 when the California Court of Appeals ruled in Van Horn v.
Industrial Accident Commission that a football player who died in a plane crash while returning
from a game was an employee of the university.43 The court viewed Van Horn’s scholarship as a
contract of employment between the school and the player, noting that the scholarship served as
compensation for his athletic services.44
The NCAA did not and still does not want to identify athletes as employees. They do not
want to be responsible for probable medical expenses. The incestuous manipulation of the terms
amateurism and student-athlete keeps the NCAA profits in the family while giving birth to still-
born athletes trapped in a system that insists its top concern is for its athletes and their education.
How can this be true, when neither the NCAA nor any given school is responsible for a student’s
medical or other expenses if he’s injured?45 How can this be true when an athlete will lose his
scholarship if injured; thus, for most students, ending their opportunity to receive a college
degree?
This combination of the NCAA’s concept of amateurism and their continued
manipulation of the term student-athlete specifically protects the NCAA from liability.46 “You’re
an amateur athlete, which means you are not an employee, which means you’re not entitled to
worker’s compensation or other benefits. So you get a scholarship and you take your chances,”
says Peter Carfagna, director of Harvard Law School Sports Law Clinic.47 With the
condescending goal of protecting their cash cow, while manipulating theses young athletes, the
43 Id. at 85.
44 Id.
45 McArdle, supra.
46 Id.
47 Id.

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NCAA “encourages” its members to use the following language in their athletic scholarship
forms:
“This award is made in accordance with the provision of the Constitution
of the [NCAA] pertaining to the principles of amateurism, sound academic
standards, and financial aid to student athletes… Your acceptance of
the award means that you agree with these principles and are bound by them.”48
The purpose of these above-described actions by the NCAA is clear. First, by insisting the
athletes are characterized as amateurs the NCAA is able to mask what they are actually doing,
which is employing players to provide athletic services in exchange for compensation.49
Secondly, the creation of the term student-athlete by the NCAA is solely to obscure the reality of
the college athlete employment relationship and to avoid the universities’ legal responsibilities as
employers. 50 Except for a few past and present college athletes, who voice their concerns about
this matter, the majorities of college athletes, in my opinion, do not understand or care about the
significance of this issue. The athletes have neither control nor power in this matter, and they
may be afraid to protest since the NCAA holds all the cards.51
The athletes do not have a choice concerning how they are identified; however, they do have
a choice, to some extent, in accepting the role as student-athlete. No one is forcing these players
to participate in these “big-time” college programs. The athletes participate because, for many,
this is the only affordable way they can attend an elite university and their only chance to play
sports that may provide them with the opportunity to be considered at the professional level.
Most players are unaware of their market value. Raised in the myth of the student-athlete, these
players enter into servitude by the thousands every year.52 Accepting an athletic scholarship
48 McCormick & McCormick. supra at 85-86.
49 Id. at 86.
50 Id.
51 McArdle, supra.

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creates a dilemma for the majority of college athletes who are minorities or from low-income
families. Should they turn down this great opportunity knowing there are definite elements of
servitude and knowing that this system carries “the unmistakable whiff of the plantation?”53
The temptation is to expound on the racial aspect of the NCAA system and to point out that
the major revenue generating college sports, (football and basketball) have a high degree of
minority student participation. Comparing the NCAA’s system to the plantation is tempting. The
racial aspect of this exploitation by the NCAA is a valid argument; however, including this
aspect of the NCAA system into this paper, does nothing to strength the argument that student-
athletes should be identified as employees. The racial argument creates a distraction that would
cause this paper to lose the legal traction required to remain credible.
The athletes’ compliance to the amateurism rules and acceptance of the moniker “student-
athlete” indicates the athletes do not care how they are identified and how this may affect their
future. Racial issue or not, the athlete has one desire which is to become a professional athlete.
The NCAA has done a remarkable job of marketing this fiction, convincing players to bask in
the bright, but brief, glow of their status as campus heroes, while nurturing their unrealistic
dreams of glory, and obscuring the reality of their exploitation.54 Demonstrating that these
athletes are neither amateurs nor primarily students transitions this discussion into why student-
athletes should be correctly identified as university employees.
IV. Statement of the Issues:“I used to go along with the idea that football players on
scholarship were “student-athletes,” which is what the NCAA calls them. Meaning
student first, an athlete second. We were kidding ourselves, trying to make it more
palatable to the academicians. We don’t have to say that and we shouldn’t. At the
level we play, the boy is really an athlete first and a student second.” Paul “Bear”
Bryant 55
53 McArdle, supra.
55 Id. at 86.

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The primary issue we must resolve is changing the identification of college athletes from
student-athlete, to university employee. There is a need to demonstrate these players are athletes
by showing that the educational aspect of their college journey is not a real opportunity. Once
determined these players are athletes and not primarily students, one can be argue that these
players should be identified as university employees. The NCAA does a great job in marketing
the idea that the primary focus as it concerns student-athletes is for them to obtain a great
education and enjoy a vibrant college experience. The NCAA continues their propaganda by
insisting that college sports are secondary to all other college experiences. As was discussed
earlier, the NCAA created and now holds on to and manipulates the term student-athlete,
investing an unbelievable amount of time into selling the student aspect of this term.
Being a student requires more than mere enrollment.56 Being a student encompasses actually
engaging in learning, education, and academic pursuits.57 However there is too much evidence
supporting the fact that the relationship between the athlete and their university is not primarily
an educational one.58 NCAA schools already operate with a “win at all cost” mentality that
threatens educational standards.59 Job retention and salary bonuses for coaches are tied to
winning games, not graduation rates.60 Theses coaches feel compelled to recruit athletes ill
equipped for college, retain academically troubled students or even overlook, if not encourage
academic fraud.61 All of these factors prevail over the educational interest of the students.62 The
commercialization of college sports and the concomitant emphasis on winning has without a
57 Id.
58 McArdle, supra.
59 Lee Goldman, Sportsand Antitrust:Should College Students Be Paid to Play, 65 Notre Dame L. Rev. 206 (1990).
Available at: http://scholarship.law.nd.edu/ndlr/vol65/iss2/3
60 Id. at 241.
61 Id.
62 Id.

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doubt denigrated the educational component of the student-athlete experience.63 As a result
student-athletes feel obligated to spend more time on the practice field than in the classroom.64
NCAA member schools have already sacrificed educational values to economic/commercial
interest.65 College athletes in many Division I football programs are students in name only and
do not spend the majority of their time engaged in learning, education, and academic inquiry, but
rather in the furtherance of their work as athletes.66
V. Legal Analysis: The NCAA adopted and mandated the term “student-athlete”
purposely to buttress the notion that such individuals should be considered students
rather than employees.”67
Universities employ professors, support staff, and administrators at their schools. The
question is whether the relationship between the university and the student-athlete is an
employment relationship in which the athletes are employees.68 In order to show that student-
athletes should be correctly identified as university employees, we must discuss the NLRA, the
cornerstone of U.S. labor policy.69 This statute, 29 U.S.C. §§ 151-169, gives organizing and
collective bargaining rights only to employees, so the question of whether a particular person is
or is not an employee is of central importance in administering this statute. 70 Proving this point
is of the utmost importance. Discussions as to whether student-athletes should receive a salary or
additional compensation for their efforts on the fields of competition falls flat unless one can
properly categorize the student-athletes as employees. Once properly identified as employees,
63 Id.
64 Id. at 242.
65 Id.
67 Id. at 84.
68 Id. at 96.
69 Id. at 87.
70 Id. at 89.

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student-athletes will receive all the benefits afforded an employee, to include proper
compensation for their efforts.
This analysis will look at the NLRA’s standard for identifying a person as an employee based
on its common law meaning. Also included, is a look at the National Labor Relations Board
(NRLB) statutory test for students wanting to be recognized as employees. Before moving into
that discussion, it is important to review a few definitions of “employee.”
Black’s Law Dictionary defines employee as a person in service of another under any
contract of hire, expressed or implied, oral or written, where the employer has the power or right
to control and direct the employee in the material details of how the work is to be performed.71
In Nationwide Mutual Insurance Co. v. Darden, the Supreme Court ruled that for Federal
laws that do not have a clear definition of “employee,” the relationship between employer and
employee should be based on the common law test that focuses on who has the right to control
the employee.72 In New York University (NYU), the NRLB wrote that the term “employee:
reflects the common law agency doctrine of the master-servant relationship, and this relationship
exist when a servant performs services for another under the other’s control or right of control,
and in return for payment.73 Although the NLRB definition and ruling in NYU was overturned in
Brown, this discussion will demonstrate why Brown supports the thesis that student-athletes are
university employees. For clarification, the NYU and Brown cases were brought before the
NLRB as matters where graduate assistants wanted to be recognized as employees.
Using the Black’s Law Dictionary definition of employee, it is clear student-athletes are in
the service of another. In this case, the “another” in general is the NCAA, but more specifically
71 Charles J. Muhl, What is an employee? The answer depends on the Federal law. Available at
www.bls.gov/opub/mlr/2002/01/art1full.pdf
72 Id. at 5.

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the universities and their college coaches. The contract is the amateurism certification contract
with the NCAA and the university.74 It is also implied that the athlete agrees to play a specific
sport in exchange for an athletic scholarship.
In 1948, the NCAA outlawed scholarships based solely on athletic ability; however, in 1956
the NCAA membership sanctioned scholarships based solely on athletic ability.75 The NCAA
authorized the use of scholarship for athletes regardless of need and explicitly authorized,
formalized, and legitimized the practice of using scholarships to compensate college athletes for
their athletic services alone.76
The common law definition of employee requires the employer to compensate the alleged
employee for services rendered.77 There is no denying the scholarship is a transfer of economic
value to the student-athlete in exchange for his athletic services.78 Once universities began
compensating students solely for their athletic services, they fulfilled the compensation
requirement of the common law test.79 Finally, based on the definition of “employee” provided
by Black’s, the coaches have the power and the right to control and direct the student-athlete in
the material details of how they shall perform while at the university.
The courts as well as the NLRB have developed what is called the common law test for
defining employee. This test is centered on who has the right to control the work process80 or
what degree of control the alleged employer maintains over the working life of the alleged
74 http://www.ncaa.org/student-athletes/future/eligibility-center
76 Id.
77 Id. at 108.
78 Id. at 112.
79 Id.
80 Muhl supra at 5.

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employee.81 For this discussion the university football coaches are the alleged employers and the
student-athletes are the alleged employees.
Studies document that from the time the college football season starts in September until it
ends more than fourteen weeks (but as many as nineteen weeks later), student-athletes commit
close to fifty-three hours per week to football for a home game and as many as eighty hours per
week for an away game.82 The hours noted are in addition to class time, study time, and ten
hours per week of mandatory study hall time which is part of the NCAA’s effort to deflect
criticism over low graduation rates.83 Earlier in this discussion it was noted that scholarships are
not four-year scholarships, but instead are one-year renewable scholarships. Understanding these
scholarships are solely managed and monitored by the coaches is a clear example of the control
the coaches have over the athletes. This system provides a method for the coaches to maintain
pressure on the student-athlete throughout his time at the university.84 If an athlete does not play
well, or if a better athlete arrives at the university, or even if the athlete is injured, the coach may
refuse to renew the athlete’s scholarship.85
This level of control does not end once the season ends. In the spring, there are conditioning
programs at many universities that occur six weeks prior to the NCAA-sanctioned spring
training.86 With the pre-season camp opening in early August, players are encouraged not to
leave the campus during the summer; however, with permission from the coach, they may
leave.87 Players are also encouraged to take summer classes but not classes during the second
82 Id. at 99.
83 Id. at 100.
84 Id. at 113.
85 Id. at 116.
86 Id. at 101.
87 Id. at 102.

17
summer session because they would conflict with official practices.88 As an example, Robert
Smith, former running back for Minnesota Vikings and pre-med student while at Ohio State,
needed two afternoon labs in the same semester. Since the labs conflicted with practice,
coaches suggested that he drop the labs because of the commitment he made to play
football. Smith took the classes but was forced to sit out the season as a red shirt athlete.89
As indicated, Smith went on to become a professional football player. An athlete of lesser
talent probably would not have gotten away with doing what Robert Smith did. This also
suggests that the primary purpose for an athlete’s attendance at college is not to receive an
education but to play the sport their scholarship is associated with.
In the years a university football team does not attend a post-season bowl game, their
commitment to the football program is approximately 240 days; if they go to a bowl game the
number increases to as many as 262 days.90 The average, employed, American worker toils 250
days per year.91 Clearly the university football coaches have a tremendous amount of control
over the athletes. No other university employee is even remotely subject to the degree of control
of the student-athlete, and this degree of control over any employee would be unimaginable.92
The athlete is dominated, managed, and controlled; and, they do not receive a wage
commensurate to their contribution as expressed in dollars earned by the university.93 If any
group of persons may be called “employee’ based upon the degree of control exercised by the
university, it must be the student-athletes enrolled there.94
88 id.
89 Dennis A. Johnson Ed.D., & John Acquaviva,Ph.D. Point/Counterpoint:Paying College Athletes available at
http://thesportjournal.org/article/pointcounterpoint-paying-college-athletes/
91 Id. at 104.
92 Id. at 108.
93 Johnson & Acquaviva supra at 6.

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Next it must be shown that student-athletes meet the statutory definition of employee as
defined by the NLRA. This requires an analysis of the NLRB’s most recent pronouncement on
the status of students as employees in Brown University. 95 Brown presents the issues of whether
graduate student assistants who are admitted into, but not hired by the university, and for who
supervised teaching or research is an integral component of their academic development, must be
treated as employees.96
Previously, the Board in NYU concluded that graduate student assistants are employees under
Section 2(3) of the Act stating they are statutory employees.97 Section 2(3) of the Act, defines
the term employee to,
“…Include any employee, and shall not be limited to the employees of a particular employer,
unless the Act [this subchapter] explicitly states otherwise, and shall include any individual
whose work has ceased as a consequence of, or in connection with, any current labor dispute
or because of any unfair labor practice, and who has not obtained any other regular and
substantially equivalent employment, but shall not include any individual employed as an
agricultural laborer, or in the domestic service of any family or person at his home, or any
individual employed by his parent or spouse, or any individual having the status of an
independent contractor, or any individual employed as a supervisor, or any individual
employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as
amended from time to time, or by any other person who is not an employer as herein
defined.”
The Board in Brown subsequently overruled the NYU decision.
The Brown Board examined four factual criteria to decide whether graduate assistants were
statutory employees.98
The first criterion is the status of graduate assistants as students.99 In Brown, the Board
pointed out the common thread in the Boards’ opinions concerning this matter in earlier
decisions. In Adelphi University, 195 NLRB 639 (1972) and Leland Stanford, 214 NLRB 621
95 Id. at 120.
96 Brown University, 342 NLRB 42 (2004) at 483.
97 Id.
99 Id. at 120.

19
(1974), the Board held that the graduate assistants are not employees within the meaning of
Section 2(3) of the Act but that they are “primarily students.”100 In support of these conclusions,
the Board cited to the following…(2) they are required to perform research to obtain their
degree; (3) they receive 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….101 Additionally, the Board ruled that “It is clear to us
that graduate student assistants… are primarily students and have a primarily educational, not
economical relationship with their university.”102 The Board goes on to say that students serving
as graduate student assistants spend only a limited number of hours performing their duties, and
it is beyond dispute that their principal time commitment at Brown is focused on obtaining a
degree and, thus, being a student.103 The Board determined the graduate student assistants are
primarily students because their service is part and parcel of the core elements of the Ph.D.
degree, and their status as a graduate student assistant is contingent on their continued enrollment
as students.104 The Brown Board acknowledged that students who perform services unrelated to
their educational programs may properly be characterized as employees.105
Clearly the athletic services provided by student-athletes are predominantly unrelated to their
educational programs.106 As pointed out in earlier portions of this paper, student-athletes commit
anywhere from fifty-three to eighty hours per week solely to football, which illustrates that their
principal time commitment is not focused on obtaining a degree or being a student.107
100 Brown University, at 487.
101 Id. at 487.
102 Id. at 487.
103 Id.
104 Id. at 488.
106 Id.
107 Id.

20
Additionally, players are encouraged not to take classes that interfere with the commitment they
made to play football. This shows without a doubt that student-athletes are not primarily students
and that their primary focus is on athletics not academics.108 The Board also strongly suggested
that being a student requires more than mere enrollment, but encompasses actually engaging in
the activities of learning, education, and academic pursuits.109 It has been demonstrated that these
student-athletes do not spend the majority of their time engaged in learning, education, and
academic inquiry, but rather the furtherance of their work as athletes.110
The second factor from Brown is the degree to which the graduate assistants’ work furthered
their education. The Board noted that oftentimes the work the students perform as graduate
assistants at Brown University, is a condition required by twenty-one of the thirty-two
departments that offer Ph.D. degrees.111 Thus for the majority of graduate students, teaching is so
integral to their education that they will not get the degree until they satisfy that requirement.112
The student-teacher relationship is based on the “mutual interest in the advancement of the
student’s education,” while the employer-employee relationship is “largely predicated on the
often conflicting interest” over economic issues.113
If one take this second factor and applies it to the student-athlete one sees that the services
provided to the university by the athletes are wholly unrelated to their education and their degree,
and resembling an employer-employee relationship.114 The coaching staffs are not interested in
the advancement of the student’s education while they are on the football team. The athletic
108 Id. at 122.
109 Id.
110 Id.
112 Id.
113 Id.

21
scholarship that is solely awarded for athletic abilities is consideration for those athletic skills,
not for the student-athletes educational endeavors.115
The third criterion the Board used in Brown to conclude that graduate students are not
university employees is the nature of the graduate student assistants’ relationship with the
faculty. At Brown University, faculty oversaw the functions graduate assistants carried out and
decided whether graduate assistants’ scholarships would be renewed.116 The Board pointed out
that the process of evaluating these graduate students was extremely personal, not only for the
students, but also for the faculty.117 Faculty members who oversaw the teaching of the graduate
assistants were the same individuals who taught them, supervised their studies, and evaluated
their dissertations.118 The exact opposite occurs for the student-athlete. The coaches and the
athletic staff, who are not faculty members, supervise the athletes’ services, demonstrating that
players’ work as athletes is not educational in nature.119 In fact the decision of whether or not to
renew an athletes scholarship is solely in the hands of the coach and cannot fairly be described as
academic.120
The fourth and final element the Brown Board relied upon asserts that the financial rewards
graduate assistants received were not pay for teaching and research services performed but were
merely financial aid to permit attendance at Brown.121 This element requires a bit of review
before we can point out the error in the reasoning of the Board. The key point the Board wants
to make is that these scholarships provided to students at Brown are only financial assistance
enabling students to attend college and that these scholarships are unrelated to the quality or
115 Id. at 124.
119 Id.
120 Id. at 126.
121 Id.

22
value of services rendered.122 This is completely erroneous. It would be hard to believe that a
university would continue to provide financial assistance to a graduate assistant who did not
teach or provide research services as required. The Board suggested that because the amount of
aid provided to graduate assistants is equal to or similar to the amounts received by students
which are not required to teach or do research that these funds are financial aid and not
compensation.123 Even if this line of thinking were accurate, suggesting that a graduate assistant
would receive the same financial benefit without having to provide services, the athlete’s
situation is vastly different.124 Athletic scholarships are never given without the requirement of
athletic services being rendered.125 Regardless of talent level, all scholar athletes must
participate in all team functions or run the risk of losing their athletic scholarship.126 Under
NCAA rules, college athletes may lose their scholarships if they fail to perform their athletic
services.127 Additionally, an athlete will lose their scholarship if they withdraw from their
sport.128 The NCAA requires schools to refer to the agreement between the university and the
athlete as a scholarship rather than an employment contract and Article 12.1.1 of the Division I
Manual makes it clear that an athlete is not permitted to receive “pay” for athletic services.129
As hard as the NCAA tries to hide behind the words of their Manual, it is clear that scholar
athletes are compensated because of their athletic abilities and will only continue to receive
compensation as long as they continue to perform to a satisfactory level in their sport.
122 Id. at 127.
125 Id. at 128.
126 Id.
128 Id. at 127.
129 Id.

23
The decision in Brown is grounded in the idea that the relationship between the graduate
assistant and the university is not an economic one but primarily an academic one.130 The
relationship between the student-athlete and their universities, by contrast, is nearly exclusively
economic and decidedly not academic.131 Therefore, by virtue of the Board’s own reasoning in
Brown, student-athletes are employees under the National Labor Relations Act.132
IV. Solution: “Things were falling apart. The system would not hold. For decades, it had
clung to the amateur ideal, enforced by a watchful governing body: Athletes could not receive
material gain, directly or indirectly, for playing sports. Yet on the way to a grubby Gomorra of
unfettered sports commerce, a funny thing happened: The watered-down Olympics didn’t exactly
sink to the bottom of the Marianas Trench.” 133
Many solutions are available to the NCAA concerning this issue of addressing student-
athletes as university employees. The primary concern is the NCAA and college sports will fade
away if the athletes become compensated employees. Another concern is how to pay them.
While the NCAA creates new definitions of amateurism and insist college sports will disappear
into the black hole of professional sports, they turn a blind eye to the fact that by holding onto
amateurism and pretending a vibrant, competitive market for collegiate athletic talent does not
exist, they NCAA has simply pushed the campus sports economy underground.134
The NCAA wants the public to believe if they recognize athletes as employees and have
to compensate them as such that this giant sports entertainment entity will soon disappear, just as
the Olympic games should have. The belief was that if amateurism were removed from the
Olympic games, the games would be destroyed in eight years.135 The Olympics have gone from
being an organization with approximately $200,000 on hand in 1980 to a multi-million dollar
130 Id. at 130.
131 Id.
132 Id.
133 Hruby, supra.
134 Id.
135 Id.

24
enterprise.136 Since the NCAA strongly believes these student-athletes should not be recognized
as university employee, they should consider the model of the Olympics and at least allow the
student-athletes to profit from their fame and image like everyone else in America.137
The Olympics provide the perfect model for what the NCAA should consider, which is to
stop worshipping the false ideal of amateurism.138 College players are only amateurs based on
the definition contrived by the NCAA. College athletes are not students who enjoy and
experience the wonders of college life. The power of the myth of the student-athlete is
undeniable and continues to richly serve the economic interests of the NCAA and many other
participants in major college sports.139
V. Conclusion: “The relationship between athletes and their universities could become more
academic than economic. But...to do so would harm their economic interests- their ability to
dominate on the field, and thus to generate tens of millions of dollars.”140
It is all about money. The NCAA’s desire to not recognize college athletes, as employees
is not based on a longing to keep college football pure and free from the corruption money will
bring. The NCAA’s desire is not based on their wish to keep the sport safe from corporate greed
and exploitation. Although the NCAA says otherwise their actions do not support the stance that
“the first duty of a university is to educate, not hire (or pay) entertainers.”141 The NCAA is not
really concerned about losing the college fan, because the college fan does not really care if a
college athlete is recognized as an employee of the university, as long as the product on the field
is of the highest caliber. The NCAA’s primary goal, its only goal, is to control the athletes and
136 Id.
137 Id.
138 Id.
140 Id. at 153.
141 Grant, supra at 5.

25
capitalize on the riches the organization obtains off the backs of the free labor mischaracterized
as student-athletes.
College athletics has been estimated to be a $60 billion industry with only one group of
persons denied the full financial fruit of this bountiful enterprise- the players themselves.142 The
college sports industry is far from amateur.143 It is an extremely profitable commercial enterprise
with student-athletes generating tremendous wealth for these schools through their skill and
effort.144 Finding any revenue generating college program that is not sponsored by a large
company like Nike, Under Armor, or Gatorade, is difficult.145 Recently, UCLA agreed to a
fifteen year, $280 million shoe and apparel deal.146 ESPN, the giant sports broadcasting network,
agreed to pay $190 million per year for six years, or $1.1 billion, to continue broadcasting Big
Ten football and basketball games.147 Money pours into the pockets of the NCAA and the
member universities thru ticket sales, and other operational aspects of managing a successful
athletic program.148 Winning seasons generate revenues from the sales of athletic apparel and
millions of dollars of indirect revenue from alumni donations not to mention increased
enrollment.149 When the University of Florida won the national championships in both football
and basketball in 2006, they received 25,400 applications the following year, an eight percent
increase over the previous year.150 The evidence demonstrates that student-athletes are not
144 Id.
146 Tim Daniels, UCLA, Under Armor Agree on 15-year Shoe, apparel Deal, available at
http://bleacherreport.com/articles/2642090-ucla-under-armour-reportedly-agree-on-15-year-shoe-apparel-deal?
147 Sam Cooper, Big Ten, ESPN agree to new media rights deal available at http://sports.yahoo.com/blogs/ncaaf-dr-
saturday/report--big-ten--espn-agree-to-new-media-rights-deal-140200506.html;
149 Id. at 134.

26
primarily students, which is the main criterion in Brown, as to why the graduate assistants were
not labeled as employees.151 The NCAA’s insistence of labeling college athletes as student-
athletes is a clear attempt to cover up their true function as employees in the commercial college
sports entertainment industry.152 In his new e-book about the NCAA, “The Cartel,” Pulitzer
Prize-winning author Taylor Branch, vilifies what he sees as the greed and hypocrisy that reward
just about everyone in college sports except the players.153
College players are only amateurs based on the definition contrived by the NCAA.
College athletes are not students who enjoy and experience the wonders of college life. The
power of the myth of the student-athlete is undeniable and continues to richly serve the economic
interests of the NCAA and many other participants in major college sports.154
College athletes at revenue-generating universities are university employees in
accordance with the NLRA, because they meet both the common law and statutory standards for
the classification.155 Student-athletes are common law employees because they are compensated
for their services with athletic scholarships that are a quid pro quo for athletic services provided,
they are under complete control of their employers (coaching staff) to which they are
economically dependent and they are statutory employees because their relationships with their
respective universities are not primarily academic but rather overwhelmingly commercial.156
This overwhelmingly commercial aspect of their relationship refutes any effort to insist the
athletes be considered amateurs.
152 Id.
153 McArdle, supra.
155 Id. at 155.
156 Id.

27
The athletes dedicate all of their energy toward improving their skills and making the
team they play for a contender. The athlete sacrifices the opportunity to obtain a quality
education, and the NCAA and their university encourage this behavior. Though the words of the
NCAA and the universities say they care about the academic goals of the athlete, their actions
tell a different story. The powerful NCAA has the louder, stronger, more persuasive voice while
the athletes must follow the mountain of NCAA rules that routinely change. The voice of the
athletes are timid and very low whispers. The NCAA sells dreams many of these athletes are not
equipped to attain -- dreams of prosperity in the professional ranks of sports or a college degree
they will never have the chance to focus upon.
The root of this issue is lots and lots of money, made by the NCAA, the universities,
corporations, and university coaches. The NCAA has the resources to continue to insist on
labeling college athletes as student- athletes and not employees.157 The student-athlete myth has
and will continue to fill the pockets of the NCAA and its members with more money than they
can spend. Attempting to destroy the flow of money that feeds the NCAA is too great a task.
Society has to wake up to the injustice being perpetrated on the public and the athletes by the
NCAA. They must embrace the power of the law and expose the false labeling of student-
athletes as primarily students and work passionately to expose the truth, which under the law is,
student-athletes are employees and should be afforded the protections and benefits associated
with this truth.158
157 Id. at 157.
158 Id.

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