Courts and the Future of “Athletic Labor” in College Sports

Recently, “labor” has entered the lexicon of NCAA litigation involving antitrust and union organizing. Athletic labor, a term coined by a federal appeals court, signals a favorable turn for students—as illustrated by a recent antitrust decision holding that student athletes are participants in a labor market. In addition, a National Labor Relation’s Board regional director’s ruling in Northwestern University has accelerated the NCAA’s efforts to compensate students. This study is based on 82 state and federal court rulings from 1973 to 2014—and predicts how courts will apply labor law to student complaints against the NCAA. My research shows that students won in 50% of first-round court rulings, but the NCAA won in 71% of second-round cases, and won another 71% of third-round appeals. I conclude that the facts in these cases favor classifying college football players as employees, but the law supports the NCAA’s amateur-athlete model. Thus, while schools profit from the sweat of football players, a federal appeals court is unlikely to alter the NCAA’s amateurism model. But, based on empirical findings in this study, the occasional first-round student victory means that the NCAA will be pressured to adopt a radically new model of amateurism that mimics the employment relationship.