From Bragging Rights to Bargaining Rights: The Case for Recognizing College Athletes as Employees

by Emmy Blane, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

Prior to 2021, in an effort to preserve amateurism in college sports, the National Collegiate Athletic Association (“NCAA”) prohibited student-athletes from receiving compensation outside of tuition, fees, and room and board.¹ Then, in 2021, the NCAA began allowing student-athletes to benefit from their name, image, and likeness (“NIL”), which set into motion a billion-dollar market.² Now, as of June 2025, the NCAA is allowing universities to share its athletic revenues with college athletes.³

This Article analyzes whether college athletes are employees for purposes of unionizing and bargaining rights and argues further that college athletes should be recognized as employees. Part II summarizes In Re: College Athlete NIL Litigation and the appropriate tests for determining whether one qualifies as an employee. Part III applies prevalent employment status tests to the college athlete and university relationship, examines arguments against recognizing college athletes as employees, and argues that college athletes do qualify as employees. Additionally, Part III discusses the implications of athletes obtaining unionizing and collective bargaining rights, as well as the nuances of those rights among private and public universities and different conferences, due to varying labor laws. Part IV briefly summarizes the new era of revenue sharing between universities and college athletes and the significance of athletes obtaining employee status.

II. Background

A. In Re: College Athlete NIL Litigation

In Re: College Athlete NIL Litigation is a consolidated litigation that began as two separate 2020 actions: House v. National Collegiate Athletic Association and Oliver v. National Collegiate Athletic Association.⁴ The plaintiffs, who were current and former Division I student-athletes, brought an antitrust suit against the NCAA, Pac-12 Conference, Big Ten Conference, Big 12 Conference, Southeastern Conference, and Atlantic Coast Conference, to challenge NCAA rules that restricted or prohibited compensation for student-athletes.⁵ In June of 2025, a federal district judge from the Northern District of California issued an opinion approving a settlement of the consolidated litigation that will vastly change the landscape of college athletics.⁶

This part focuses on the aspect of the settlement that enables NCAA schools to share their athletic revenues with Division I college athletes.⁷ Universities may now directly provide compensation to athletes worth up to twenty-two percent of Power Five schools’ average athletic revenues each year.⁸ In aggregate, Division I athletes could now receive approximately 1.6 billion dollars in compensation per year, with the cap starting at more than 20 million dollars per school in the 2025-2026 academic year and increasing over the next ten years.⁹

B. Tests for Determining Employment Status

Now that universities can directly compensate college athletes for their athletic services, athletes may seek to solidify themselves as employees of their universities to secure benefits and rights. To determine whether a person is entitled to unionize and collectively bargain, one must first ascertain whether the person is an employee.¹⁰ This is a necessary clarification because the National Labor Relations Act (“NLRA”) excludes certain persons from its coverage, meaning that some do not have the unionizing rights that employees under the NLRA enjoy.¹¹

Section 2(3) of the NLRA defines an employee as:

“…any employee…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…or by any other person who is not an employer as herein defined.”¹²

If a person does not fall under one of these exemptions, it is helpful to apply existing tests for determining employment status: 1) the common law definition of a servant, which analyzes whether a person “perform[s] services in the affairs of another and who…is subject to the other’s control” or 2) whether the employer has an economic relationship with the employee.¹³

Government employees, including public university employees, are not covered by the NLRA, as they fall under the exemption of being employed by “any other person who is not an employer as defined herein.”¹⁴ Instead, public sector employees are governed by applicable state labor laws.¹⁵ However, many states focus on similar factors for determining whether an individual qualifies as an employee, such as the degree of control the employer exercises over the individual and the nature of the individual’s work compared to that of the employer’s business.¹⁶

III. Discussion

A. Athletes Should Be Considered Employees

This Section examines arguments against college athletes being recognized as employees and applies employment status tests to the relationship between college athletes and universities. Although these tests only directly apply to athletes at private universities, the results of the tests demonstrate that college athletes should be treated as employees.

1. Independent Contractor Argument

The NLRA does not define an independent contractor,¹⁷ but the National Labor Relations Board (“NLRB”) provides guidance for determining whether an individual is an employee or independent contractor.¹⁸ Essentially, an independent contractor is subjected to less of the control of the employer than an employee and serves more as their own independent business.¹⁹ Considering the NCAA’s lax transfer rules and the short length of athletes’ eligibility, it is arguable that athletes are more like independent contractors than employees.

Eligibility for college athletes is typically four years.²⁰ Additionally, college athletes are allowed to transfer to a new university as many times as they want without penalty, so long as they are academically eligible.²¹ Thus, the sporadic nature of NCAA transfer rules, which virtually treat athletes as free agents every year, and the limited years of eligibility, may lean toward independent contractor status.²² However, many college coaches are signed to contracts as short as five years, and they may be fired or seek other employment before that contract expires.²³ If coaches are considered employees with these types of contracts and lengths of employment, perhaps athletes should be, too.

Additionally, universities exercise extensive control over their athletes.²⁴ According to NCAA bylaws, universities must count athletically-related activities within weekly and daily limitations.²⁵ Athletically-related activities include any required activity with an athletics purpose involving student-athletes at the direction of, or supervised by, one or more of an institution’s coaching staff.²⁶ Thus, to comply with NCAA rules, coaches and universities must tediously schedule and supervise their athletes’ daily athletic activities.²⁷ As such, the degree of control that universities exercise over their athletes refutes the argument that college athletes are independent contractors.

Accordingly, athletes at private universities do not fall under any exemptions provided in Section 2(3) of the NLRA, and other applicable tests should be applied to determine college athletes’ employment status.²⁸

2. Common Law “Servant” Test

The Common Law “Servant” Test analyzes whether a person “perform[s] services in the affairs of another and who…is subject to the other’s control.”²⁹ First, college athletes generate staggering amounts of revenue for their universities, demonstrating that athletes perform services in the interest of their universities.³⁰ Namely, the Ohio State University Athletic Department leads the nation in revenue generated, at $280 million, followed by the University of Texas at $271 million.³¹ Additionally, the NLRB has already established that college athletes are subject to their universities’ control.³² When analyzing the Dartmouth College Men’s Basketball team’s employment status in Trustees of Dartmouth College and Service Employees International Union, an NLRB Regional Director found that:

“Dartmouth determines when the players will practice and play, as well as when they will review film, engage with alumni, or take part in other team-related activities. When the basketball team participates in away games, Dartmouth determines when and where the players will travel, eat, and sleep. Special permission is required for a player to even get a haircut during a trip.”³³

Accordingly, when applying the common law “servant” definition to the college athlete-university relationship, it is clear that college athletes are employees.

3. “Economic Relationship” Test

It is undisputed that college athletes generate revenue, whether directly or indirectly, for their universities such that an economic relationship is established.³⁴ This economic relationship is not even limited to the nation’s largest programs. When Saint Peter’s University beat the University of Kentucky in the 2023 NCAA Men’s Basketball Tournament, Saint Peter’s generated nearly two million dollars in donations, media earnings, and merchandise sales.³⁵ Additionally, now that athletes benefit from the use of their Name, Image, and Likeness and universities can directly share revenue with athletes, the athletes’ earnings are evidence of the economic relationship with universities.³⁶

4. Brown University “Primarily Student” Argument

A prevalent argument against college athletes being recognized as employees is based on the outdated 2004 NLRB decision in Brown University.³⁷ In that case, the NLRB found that graduate student assistants had a predominantly educational, rather than economic, relationship with the university; therefore, the NLRB decided graduate assistants were not employees within the meaning of the NLRA.³⁸ In the 2015 Northwestern University NLRB case, Northwestern University argued that, like Brown University’s graduate assistants, Northwestern football players were primarily students, as the athletic program was “inextricably linked” to the university’s educational mission, players’ scholarships were akin to financial aid, and the football coach acted as players’ educator and mentor, rather than employer.³⁹

The “primarily student” argument is inapplicable to college athletes in 2025, especially after the decision reached in In Re: College Athlete NIL Litigation to allow universities to directly share millions of dollars in revenue with their athletes.⁴⁰ Although college athletes must still fulfill education requirements under NCAA policies, their ability to earn substantial income––and the ease at which they can transfer to increase their financial and athletic opportunities––now makes them primarily employees as opposed to students.⁴¹ For example, University of Texas Football’s Arch Manning is earning approximately $6.8 million in 2025, and LSU Women’s Basketball’s Flau’jae Johnson is earning approximately $1.5 million, with many college athletes enjoying comparable amounts.⁴² These earnings go beyond financial aid. In Re: College Athlete NIL Litigation indicates that athletes’ compensation is for their athletic services.⁴³ Thus, the purpose of NIL compensation and revenue share is much different than players’ mere scholarships in Northwestern University, which demonstrates that athletes are not primarily students.

Additionally, several high-profile college coaches, such as Rick Pitino and Geno Auriemma, have expressed that, in the NIL era, college athletes are professionals and should be treated as such.⁴⁴ Realistically, gone are the days when coaches can simply view themselves as educators and mentors while they negotiate million dollar deals with their athletes’ agents and, metaphorically, sign their athletes’ checks.⁴⁵

Accordingly, Brown University does not control the college athlete-university relationship in 2025, as it is now a primarily economic relationship.

5. Conclusion About College Athletes’ Employment Status

College athletes at private universities do not fall under any exemptions set forth in Section 2(3) of the NLRA. Further, universities’ control over college athletes, college athletes’ earning potential, and the revenue they generate for universities demonstrate that the college athlete-university relationship is primarily economic. Therefore, college athletes qualify as employees under prevalent employment status tests.

B. Implications of Athletes Unionizing and Collectively Bargaining

Unless athletes obtain employee status and bargaining rights, the power is largely in the hands of the universities to determine how the revenue share is allocated within its athletic department.⁴⁶ For example, universities with dominant football programs will likely decide to spend a majority of their revenue on their football rosters, while basketball schools would rather spend their money building the best basketball roster possible. Currently, these decisions are the universities’ to make, and athletes do not get a say, aside from exercising their choice to transfer to a different school for a more desirable paycheck.⁴⁷ However, if athletes could organize and collectively bargain, they would actually have a say in how the revenue they generate is allocated, and they would be able to secure other benefits.

Collective bargaining may not solely result in salary negotiations. One study revealed that, on average, a college athlete experiences over two injuries per year.⁴⁸ Athletes could negotiate for health care assurances for sports-related injuries and even post-eligibility medical care, as studies show that former Division I athletes report significant decreases in mental and physical health, and overall quality of life, after college.⁴⁹

Athletes might also consider mental health support a focus of bargaining. In the most recent NCAA Student-Athlete Health and Wellness Study, twenty-seven percent of Division I female athletes reported feeling overwhelming anxiety “constantly” or “most every day” and seven percent reported being “so depressed that it was difficult to function,” with nine percent and four percent of male athletes reporting the same, respectively.⁵⁰ However, only forty-seven percent of female athletes and fifty-nine percent of male athletes reported feeling that athletes’ mental health was a priority of their athletic department.⁵¹ Overall, athletes could utilize unionizing and bargaining as a catalyst to address their needs and to obtain benefits from the revenue they generate.

1. Are All Employees Guaranteed Unionizing and Bargaining Rights? Implications of Limited Bargaining Rights in Some States

The NLRA would cover athletes at private universities, which ensures unionizing rights.⁵² However, it is more complicated for athletes at public universities to secure unionizing rights, as individuals employed by the state government are excluded from the NLRA and are governed on a state-by-state basis.⁵³ In fact, even if athletes are eventually recognized as employees, many states do not allow certain public sector employees to collectively bargain.⁵⁴ This discrepancy may provide an interesting nuance in recruiting, and college athletics at large, if athletes are eventually granted employee status and begin collective bargaining.

For starters, athletes at private universities could join unions comprised of athletes across the country, but athletes at public universities could not necessarily join them, depending on their states’ unionizing and collective bargaining laws.⁵⁵ Athletes at public universities in states with unionizing and bargaining rights could unionize on their campuses or join with athletes at other universities in their states, but their numbers would necessarily be smaller than their private school counterparts, and their bargaining power would likely reflect their size.⁵⁶ Finally, athletes at public universities in some states may have no bargaining rights at all.⁵⁷ The question remains if these differences would impact recruiting and overall success.

For example, athletes at private universities that are also college sports powerhouses––such as Stanford University, University of Southern California, Duke University, and University of Notre Dame––may have an advantage over their public-school competitors in the Southeastern Conference, as many southern states prohibit public sector employees from collectively bargaining or, in some cases, specifically ban public school employees from bargaining.⁵⁸ Time will tell if the Southeastern Conference’s desire to maintain its status as the most dominant conference in college sports will lead their state legislatures to adopt friendlier unionizing and bargaining policies for public employees, or at least for college athletes. In the meantime, it is worth considering how differing labor laws among states may affect the recruiting landscape, specifically as it relates to unionizing and bargaining.

IV. Conclusion

Since universities can now pay college athletes directly for their athletic services, it is time to consider whether college athletes should be recognized as employees of their universities. Applying Section 2(3) of the NLRA and prominent employment status tests to the college athlete-university relationship demonstrates that college athletes likely do qualify as employees. For purposes of unionizing and bargaining rights, the implications of employee status could be more beneficial for some athletes than others, as labor laws vary depending on whether one attends a private or public university and in which state. Organizing and collectively bargaining could be monumental for the expansion of college athletes’ rights and benefits, but the first step is obtaining employee status.

Cover Photo by Jeffrey F Lin on Unsplash

Emmy Blane

References

1
Aaron Bell,Money, Sports, and College: How Stellar Television Ratings Decimate the NCAA’s Justification for Compensation Restrictions on Student-Athletes, U. Cin. L. Rev. Blog (Dec. 12, 2024), https://uclawreview.org/2024/12/12/money-sports-and-college-how-stellar-television-ratings-decimate-the-ncaas-justification-for-compensation-restrictions-on-student-athletes/#_ftn3 [https://perma.cc/QJ6U-9CWU].
2
Id.
3
In reColl. Athlete NIL Litig., No. 20-cv-03919 CW, 2025 WL 1675820 at *1, *45 (N.D. Cal. June 6, 2025).
4
Id. at *2.
5
Id. at *1.
6
Id. at *1, 45.
7
Id. at *1.
8
Id. at *7.
9
Id.
10
See Employee Rights, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employee-rights [https://perma.cc/NV8S-M46U] (last visited Sep. 17, 2025).
11
Id.
12
National Labor Relations Act § 2(3), 29 U.S.C. § 152(3).
13
Anne Marie Lofaso, United States Labor Relations Board Cowardly Punts its Duties, Oxford Hum. Rts. Hub Blog (Aug. 31, 2015), https://ohrh.law.ox.ac.uk/united-states-labor-relations-board-cowardly-punts-its-duties/ [https://perma.cc/G3BQ-7MSS].
14
National Labor Relations Act § 2(3), 29 U.S.C. § 152(3). The NLRA does not recognize states as employers. Id. at § 152(2).
15
See Jurisdictional Standards, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/jurisdictional-standards [https://perma.cc/7UTX-LLMT] (last visited Sep. 17, 2025).
16
See Jon O. Shimabukuro, Cong. Rsch. Serv., R46765, Worker Classification: Employee Status Under the National Labor Relations Act, the Fair Labor Standards Act, and the ABC Test (2021).
17
See National Labor Relations Act § 2, 29 U.S.C. § 152.
18
The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, 372 NLRB No. 95, 2–3 (2023).
19
See id. at 3.
20
What is the NCAA Age Limit?, NCSA College Recruiting, https://www.ncsasports.org/ncaa-eligibility-center/age-limit [https://perma.cc/UU8Z-LZP9] (last visited Sep. 18, 2025).
21
NCAA Transfer Rules, NCSA College Recruiting, https://www.ncsasports.org/recruiting/ncaa-transfer-rules [https://perma.cc/6D84-5DBC] (last visited Sep. 18, 2025).
22
See id.
23
College Coaching Contracts and the Future of “Buyouts”, Bricker Graydon (Nov. 17, 2023), https://www.brickergraydon.com/insights/publications/College-Coaching-Contracts-and-the-Future-of-Buyouts [https://perma.cc/G262-X78J]. For example, while the length of FBS head coaches’ contracts are often five plus years, the average tenure is only 3.7 years. Id.
24
Dalton Stewart, Note,From Students to Professionals: The Case for Treating College Athletes as Employees, 51 Ohio N. U. L. Rev. 343, 366–67 (2025).
25
Id. at 367.
26
Id.
27
See id.
28
National Labor Relations Act § 2(3), 29 U.S.C. § 152(3); Lofaso, supra note 13.
29
Lofaso, supra note 13.
30
Eric Mullin, What Are the Most Valuable College Athletic Programs? CNBC Unveils Top 75Llist, NBCDFW (Dec. 19, 2024), https://www.nbcdfw.com/news/sports/most-valuable-college-athletic-programs/3723518/ [https://perma.cc/WEW7-UTA4].
31
Id.
32
Trs. of Dartmouth Coll. & Serv. Emps. Int’l Union, Loc. 560, 373 NLRB No. 34 (Mar. 5, 2024).
33
Id.
34
Mullin, supra note 30.
35
Stewart, supra note 24, at 364.
36
In re Coll. Athlete NIL Litig., No. 20-cv-03919 CW, 2025 WL 1675820 at *1 (N.D. Cal. June 6, 2025).
37
Lofaso, supra note 13; Northwestern University’s Brief to the Board on Review of Regional Director’s Decision and Direction of Election at 14, Nw. U. & Coll. Athletes Players Ass’n, 362 NLRB No. 167 (2015).
38
Northwestern University’s Brief to the Board on Review of Regional Director’s Decision and Direction of Election, supra note 37 at 15–16.
39
Id. at 21–23.
40
In re Coll. Athlete NIL Litig., 2025 WL 1675820 at *7.
41
Staying on Track to Graduate, NCAA (Feb. 10, 2021), https://www.ncaa.org/sports/2021/2/10/student-athletes-current-staying-track-graduate.aspx [https://perma.cc/83BX-ZFCL]; In re Coll. Athlete NIL Litig., 2025 WL 1675820 at *7; NCAA Transfer Rules, NCSA College Recruiting, https://www.ncsasports.org/recruiting/ncaa-transfer-rules [https://perma.cc/C7RV-PVMV] (last visited Sep. 18, 2025).
42
Nate Cunningham, Highest Paid College Athletes via NIL Deals in 2025-2026, Sports Illustrated (July 14, 2025), https://www.si.com/college-basketball/highest-paid-college-athletes-via-nil-deals [https://perma.cc/UJB7-88TM];Women’s NIL Valuations, On3 (Sep. 10, 2025), https://www.on3.com/nil/rankings/player/womens-nil-valuations/ [https://perma.cc/MFT8-J4NN].
43
In re Coll. Athlete NIL Litig., 2025 WL 1675820 at *1.
44
Amanda Christovich, College Coaching Legends Say Their Players Are Professionals, Front Office Sports (Oct. 25, 2024), https://frontofficesports.com/ncaa-basketball-coaches-players-pros/#:~:text=A%20looming%20settlement%20in%20the,don’t%20mistake%20me [https://perma.cc/E4Y6-VUKW].
45
See Cunningham, supra note 42; On3, supra note 42.
46
In re Coll. Athlete NIL Litig., 2025 WL 1675820 at *27.
47
See id.
48
Jean Lemoyne et al., Analyzing Injuries Among University-level Athletes: Prevalence, Patterns and Risk Factors, 61 J. Can. Chiropractic Ass’n 88, 93 (2017).
49
Janet E. Simon et al., Health-Related Quality of Life in Former National Collegiate Athletic Association Division I Collegiate Athletes Compared With Noncollegiate Athletes: A 5-Year Follow Up, 56 J. Athletic Training 331, 332, 336 (2021). In this study, former Division I athletes illustrated a clinical difference between college and five years post-college, scoring worse on the depression, fatigue, pain interference, and physical function scales compared to non-collegiate athletes who experienced no clinically significant difference between the same time points. Id. at 336. The researchers proposed that these results were related to injuries that limited athletes’ ability to lead an active lifestyle after college. Id. In light of these findings, researchers suggested that the collegiate athletic experience should include plans for lifelong health and wellbeing. Id. at 332.
50
NCAA Student-Athlete Health and Wellness Study, NCAA (Dec. 2023), https://ncaaorg.s3.amazonaws.com/research/wellness/Dec2023RES_HW-MentalHealthRelease.pdf [https://perma.cc/92XE-CFHE] (last visited Sep. 18, 2025).
51
Id.
52
NLRB, Employee Rights, supra note 10.
53
Id.
54
Public Sector Bargaining by State, Public Employee Labor Relations Board (Mar. 2023), https://www.pelrb.nm.gov/wp-content/uploads/2023/03/Public-Sector-Collective-Bargaining-by-State.pdf [https://perma.cc/S45K-R3P6] (last visited Sep. 18, 2025).
55
See id.
56
Kenneth G. Dau-Schmidt & Benjamin C. Ellis,The Relative Bargaining Power of Employers and Unions in the Global Information Age: A Comparative Analysis of the United States and Japan, 20 Ind. Int’l & Comp. L. Rev. 1, 4 (2010).
57
Public Employee Labor Relations Board, supra note 54.
58
Id. States such as Alabama, Arkansas, Georgia, Kentucky, Mississippi, South Carolina, Tennessee, and Texas prohibit or limit the right for public school employees to collectively bargain. Id.