If a Student-Athlete Is an Employee, Why Isn’t a Graduate Assistant?

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In a case that could reshape big-time college athletics—and a good deal else—Chicago's regional office of the National Labor Relations Board (NLRB) ruled on 26 March that football players receiving financial aid at Northwestern University (NU) are employees of the university and therefore have the right to form a union. Potentially at stake is a share of NU's (and other universities') lucrative sports-program income.

If undergraduate students who receive money for tossing balls can unionize, why can't graduate students who get money for teaching classes or running experiments? In the Brown University (BU) decision of 2004, the NLRB ruled that graduate assistants are not employees but students and therefore ineligible to unionize. Both the NU and BU decisions cover private universities only. Public universities come under the labor laws of the individual states, some of which allow graduate assistant unions.

"If undergraduate students who receive money for tossing balls can unionize, why can't graduate students who get money for teaching classes or running experiments?"

In the NU decision, the NLRB explicitly addressed the legal distinctions between the case and the BU decision. In The Chronicle of Higher Education, Sara Hebel listed those distinctions:

  • Student-athletes spend the bulk of their time on sports while graduate assistants spend the bulk of theirs on studying.
  • Athletes have a primarily economic relationship with the university because the sport earns them no academic credit, whereas graduate assistants' work contributes to their degrees.
  • Faculty members do not supervise athletic activities, but they do supervise teaching or research work.
  • Graduate students receive aid to attend graduate school, whereas athletes receive pay for playing. In 2004, the NLRB said that in some cases the stipends were identical for graduate students on full fellowship and those acting as assistants. Athletes, however, never get paid unless they're on the team.

If those distinctions strike you as tenuous, you're not alone. "The days of the Brown University ruling are numbered," says William B. Gould IV, an emeritus law professor at Stanford University in California who formerly chaired the NLRB, as quoted by Vimal Patel in The Chronicle of Higher Education. The 26 March decision "highlights what big businesses universities are," Gould continues.

"The fact that the rubric of education is placed upon teaching and research assistants does not mean they are not employees, particularly when they are under the control of others and receiving compensation for it," Gould says. "I see the Northwestern case as one step in the road to recognizing that universities are employers, and that those who work for them and are directed by them are employees."

Not everyone is convinced of Gould's view, however, and much litigation lies ahead. Thus far, the NU decision does not have national reach, and the university is sure to appeal it. But if it stands, it could ultimately reopen the question of whether graduate students at private institutions should be free to unionize.

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