Bargaining with the Real Boss: How the Joint Employer Doctrine Can Expand Student-Athlete Unionization to the NCAA as an Employer

Abstract

College sports at the Division I level are in disarray. At the forefront of the problem is the question of how to put a price tag on education. This is because student-athletes, particularly those who receive full tuition scholarships to play NCAA sports, are the wheels that turn a $12 billion per year industry despite the fact that they receive no paychecks for their commitments. Instead, they are given an opportunity to receive an education that for non-athletes, may cost as much as $40,000 per year. However, in comparison, the NFL is a $9 billion dollar industry, where multi-million dollar players contracts are the norm. As a result, the labor rights movement for student-athletes is at a boiling point. In 2014, the Director of Region Thirteen National Labor Relations Board, Peter Sung Ohr, gave way to a short-lived victory for CAPA, by finding it was a “labor organization” with collective-bargaining rights toward its university “employer,” Northwestern. Northwestern requested review immediately, and on August 17, 2015, the full National Labor Relations Board (the Board) dismissed CAPA’s petition, citing a lack of jurisdiction over the field of NCAA universities. In other words, a private union from Northwestern could fall under the NLRA, but the NLRB would not have jurisdiction over the majority of American universities, which are public institutions, Therefore, even had the full Board upheld CAPA as a viable bargaining unit, players at public universities would have been unable to seek the labor protections available to their private-university counterparts. College sports would have been in disarray with a fragmented unionization efforts, so the Board avoided the merits of the issue and ruled on procedural grounds.However, shortly after the Northwestern decision, the Board decided a labor dispute involving the joint-employer doctrine in Browning-Ferris Industries of California. The stakes in that case implicated the well-known corporation, McDonald’s, which is the example that this Note uses to illustrate several points. Using the McDonald’s example, the issue was whether employees at McDonald’s — who appear to be employed by both a McDonald’s franchisee and the parent corporation — could hold the parent company (McDonald’s Corp.) liable for labor violations committed at the franchisee-level. In Browning, the Board ruled that franchise-level employees can bring these claims against their true employer, like McDonald’s Corp. And interestingly, college sports are structured in a very similar way, with universities entering contracts with the NCAA to employ student-athletes via scholarships to work within their respective sports programs. This Note provides the first-ever application of the joint-employer doctrine to student-athlete labor, to provide the means to bargain with their real boss, the NCAA — their private-sector “employer.”