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Abstract

This Article argues why the National Collegiate Athletic Association’s (NCAA) Big-Time Division I College Football and Men’s Basketball student-athletes are legally “employees” and why these student-athletes are inadequately compensated for their revenue-producing skills.

Part II of this Article sets forth the common law “right of control” test and the National Labor Relation Act’s (NLRA) special statutory test for students in a university setting, and shows how the National Labor Relations Board (NLRB) and the judiciary determine whether a particular person, specifically a university student, meets these standards and is legally an “employee”. Moreover, the NCAA asserts it does not have to compensate these student-athletes above their grant-in-aid because their relationship with their universities is an educational one. Part II also discusses the right of publicity tort to show that the relationship between these particular student-athletes and the NCAA is predominantly an economic one and not an educational one.

Part III of this Article applies two tests, the common law “right of control” test and the NLRB’s special statutory test it developed and applied to university students in Brown to show that these particular “student-athletes” are legally “employees.” As such, they should be compensated more than the grant-in-aid they already receive from the NCAA for their revenue-producing skills. This section also discusses Texas A&M Quarterback Johnny Manziel, and why Texas A&M University is reaping major financial benefit for the misappropriation of Manziel’s “likeness.” Part III also discusses NCAA Proposal 26 and how the NCAA and its member schools are continuing to invent innovative ways to misappropriate student-athletes’ “likenesses” for financial gain without compensating them. Additionally, this section illustrates that former student-athletes in addition to current athletes recognize that the NCAA is exploiting them for commercial gain without compensation. This section concludes with three potential solutions to how the NCAA could pay the student-athletes and at the same time advances the NCAA’s amateurism dogma in college athletics. The NCAA can no longer use its affirmative defense of “amateurism,” and should develop a payment method to compensate the services rendered by student-athletes who are the true moneymakers for its lucrative commercial enterprise.