Students, Athletes, and Employees: An Evolving Distinction

As the emergence of Name, Image, and Likeness (NIL) rights continues to redefine the legal environment of college athletics, many experts and commentators have turned their attention to student-athlete unionization, arguing both for or against classifying student-athletes as employees under the National Labor Relations Act of 1935. However, few commentators have addressed a critical observation that this Article finds indispensable to a well-functioning narrative among students, student-athletes, and employees: not all athletic programs are the same. In fact, many of these programs are so different from one another that focusing on the “forest” of unionization might gravely ignore the “trees” that characterize these complex groups of institutions.In response, this Article aims to facilitate a more complete discussion between students, student-athletes, and employees by highlighting one group of institutions whose barrier to student-athlete unionization is very different from those of other institutions: the Ivy League. As this Article attempts to demonstrate, Ivy League athletic programs are institutionally unique in ways that mitigate the National Labor Relations Board (NLRB)’s concerns to grant “employee” status in other cases—namely that doing so will disrupt the balance of labor relations or financially imperil the affected universities. On these observations, this Article posits that notwithstanding the arguably questionable merits of student-athlete unionization, the Ivy League offers a uniquely promising “test site” in which to probe the practical consequences of classifying student-athletes as employees and derive valuable insights that could inform similar proposals at other institutions.