Academic journal article American University Law Review

It's Time to Stop Punting on College Athletes' Rights: Implications of Columbia University on the Collective Bargaining Rights of College Athletes

Academic journal article American University Law Review

It's Time to Stop Punting on College Athletes' Rights: Implications of Columbia University on the Collective Bargaining Rights of College Athletes

Article excerpt

"[E]very Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and leftit in, he hath mixed his Labour with, and jo[i]ned to, at least where there is enough, and as good leftin common for others."

-John Locke1


A remarkable feature of American universities is the role that intercollegiate athletics enjoys in the college experience. Not only do athletic programs at universities inspire fervent allegiance, but these programs also generate millions of dollars in profits for their respective schools and leagues.2 However, while universities financially compensate numerous student assistants who research or otherwise work for the university in some capacity,3 universities fail to compensate college athletes for their revenue-producing skills and the considerable time they spend training, preparing, and competing.4 Although legal scholars have extensively discussed and written about the status of college athletes on university campuses,5 the leading enforcer of federal labor laws recently decided a case regarding student assistants that questions the widely held opinion that college athletes are merely students.

On August 23, 2016, the National Labor Relations Board (NLRB or "the Board") held in Columbia University6 that student assistants who have a common-law employment relationship7 with their university are statutory employees under the National Labor Relations Act (NLRA or "the Act"), which granted them full bargaining rights and union protection.8 The Board further held that affording student assistants- graduate or undergraduate-the right to engage in collective bargaining would "further the policies of the Act, without engendering any cognizable, countervailing harm to private higher education."9 This decision overruled the Board's previous determination in Brown University,10 which held that permitting graduate student assistants to bargain collectively would improperly intrude onto the educational process and would be inconsistent with the purposes and policies of the Act.11

The ruling in Columbia is groundbreaking because, in addition to overturning Brown, it also abandoned the legal- and policy-based rationale it proffered just one year earlier in Northwestern University.12 Columbia implicitly undermined Northwestern's holding, which had discouraged courts from exercising jurisdiction over college athletes and from recognizing them as employees.13 The petitioners in Northwestern, football players receiving grant-in-aid scholarships, had asked the Board to recognize them as employees under the Act.14 Such recognition would have afforded them numerous protections under federal labor laws and would have significantly improved their bargaining power.15 When the Regional Director first heard the case,16 he ruled that the petitioned-for unit at Northwestern must be accorded employee status because they met the Board's common law test for determining who is an employee under the Act.17 Yet upon reviewing the regional office's decision, the Board overturned the Regional Director's determination and held that asserting jurisdiction over college athletes would not promote stability in labor relations and would not further the policies of the Act.18 By not exercising jurisdiction, the Board punted on the specific question of whether college athletes are employees under the Act but, remarkably, noted in the opinion that nothing precluded a future determination19 that college athletes are employees.20

At stake is the status quo, where college athletes have no substantial rights as amateur athletes,21 are subjected to prohibitive control at the hands of their coaches, universities, and respective leagues,22 all the while enduring some of the most laborious work on college campuses.23 The opportunity for college athletes to gain legal status as employees under federal law-which is likely imminent after Columbia-would allow college athletes to caucus for their rights and salvage their dignity. …

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