Zachary Bock

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The National Collegiate Athletic Association (NCAA) and its member institutions have increasingly become some of the most powerful organizations in the country. With increased power it was only a matter of time before the NCAA and member institutions would feel pressure from its own constituents. As was expected, the pressure initiated in the summer of 2009 when Edward O'Bannon, former UCLA men's basketball standout, brought a class action lawsuit against the NCAA alleging antitrust violations. After a long battle in the United States District Court for the Northern District of California, O'Bannon's class action prevailed, but only to have the decision partially vacated by the Ninth Circuit Court of Appeals. However, the initial success of the O'Bannon case provided a sense of hope for other collegiate athletes and groups to put forth an effort to limit the NCAA and its member institutions' power. Before the O'Bannon case had been decided another group of athletes at Northwestern University came together with hopes of unionizing. Northwestern University's football team petitioned to the National Labor Relations Board (NLRB), wherein, the case was assigned to the Regional Director in Evanston, IL. The Regional Director applied a standard three prong test, established by prior NLRB decisions, in order to decide if Northwestern University football players were employees of the institution. By the end of the Regional Director's analysis, he had concluded that Northwestern University's football players were employees of the university and could unionize. Yet again, the success of student-athletes was short lived, when Northwestern University appealed to the Board for review. The NLRB denied jurisdiction on the matter, effectively killing the Regional Director's order. Now we all sit and wait for an appeal This Comment focuses on the Regional Director's analysis of the three prong test for employee status, especially the third prong, which focuses on compensation for a service. The term compensation is never truly defined by the Regional Director nor by the NLRB. Traditionally, when we talk about compensation we are thinking of a paycheck, some sort of direct access payment. But in this scenario we are dealing with athletic scholarships; a form of compensation that is not a paycheck but, rather, an institutionally controlled financial aid. This Comment further attacks the rationale of the Regional Director by diluting his arguments that institutions can cancel or reduce athletic scholarships for any reason at any time by offering NCAA Bylaws and regulations, and case samples that specifically prevent institutions from cancelling or reducing athletic scholarships for any reason. Even more importantly, this Comment introduces the potential side effects and implications of allowing student-athletes to unionize, including: tax ramifications, violation of Title IX, nonscholarship discrimination, and a complete dissolution of amateurism.

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Northern Illinois University Law Review

Suggested Citation

Zachary Bock, Comment, Student-Athletes as Employees: Unmasking Athletic Scholarships, 36 N. Ill. U. L. Rev. 131 (2016).

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