University of Miami Business Law Review

Document Type



The college sports industry is deeply rooted within the culture of the United States. Its popularity has only grown, which has led to business opportunities and vast economic wealth for many within the National Collegiate Athletic Association (“NCAA”). This wealth is mainly distributed among, but not limited to, NCAA executives, conference commissioners, university presidents, coaches, and athletic directors. The individuals actually taking part in the athletic contests, the college athletes, are excluded from this list. Specifically, looking at Division I college athletes, the harsh reality is that these young men and women are participating in a billion-dollar industry and not being adequately compensated for their services. One proposed solution to remedy this inadequacy is to recognize college athletes as employees.

This Note will assess the possibility of college athletes becoming employees by first, analyzing the history within the court system and the adoption of breakthroughs within (1) the Supreme Court (reducing barriers to college athlete compensation); (2) the National Labor Relations Board (recognizing that some college athletes are employees under the Fair Labor Standard Act); and (3) Congress (Senate introducing bills recognizing the rights of college athletes). Second, in light of these breakthroughs, this Note will examine the class action filed on behalf of former Villanova football player Trey Johnson against the NCAA. At bottom, this Note suggests that it is all but inevitable for college athletes to be considered employees. Different from other articles pertaining to this subject, this Note recognizes the overwhelming negative effects an employment model will have for many college athletes. Additionally, treating college athletes as employees will hurt each university, conference, and the NCAA entity as a whole and force the NCAA Division I Model to make significant changes. With the support of diverse Division I administration members, ranging from those representing Football Championship Subdivision and Football Bowl Subdivision universities and conferences, this Note will address the challenges associated with changing the Division I Model and offer solutions to help control the issues associated with a college athlete employment model. Of these solutions, the most compelling is removing the Football Bowl Subdivision from the revenue distribution formula and creating a separate entity for that level of football coined the National College Football Association. The best route, however, is to avoid an employment model by choosing not to classify college athletes as employees and instead proactively implement a licensing model that allows for revenue sharing among college athletes participating in revenue earning sports.