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Abstract: Grant-in-aid athletes in revenue-generating sports at Division I National Collegiate Athletic Association (NCAA) institutions are not "student-athletes" as the NCAA asserts, but are, instead, "employees" under the National Labor Relations Act (NLRA). To be an employee under that Act, these athletes must meet both the common law test and a statutory test applicable to university students. In applying the common law test to athletes, we describe their daily lives through interviews with current and former Division I grant-inaid athletes. These interviews demonstrate that their daily burdens and obligations not only meet the legal standard of employee, but far exceed the burdens and obligations of most university employees. In addressing the statutory definition of the term employee, we demonstrate that the relationship between these athletes and their universities is not primarily academic, but is, instead, undeniably commercial. As employees under the NLRA, these athletes are entitled "to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Consequently, they will be able to acquire bargaining power through collective association and to negotiate their terms and conditions of employment, including wages not arbitrarily limited to the level of athletic scholarships.
The Labour of his Body, and the Work of his Hands . . . are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men.1
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.2
INTRODUCTION
The National Collegiate Athletic Association (NCAA), a voluntary association of approximately 1,200 colleges and universities,3 has among its stated purposes promoting amateur athletics.4 Towards that end, the first stated purpose in its Division I Manual is "[t]o initiate . . . and improve intercollegiate athletics programs...