First, employees do not have to get paid, they merely need to receive some form of compensation (room, board, tuition) in return for work (attend meetings, lift weights, conform to standards of behavior [plays], attend scheduled work). An employee must also conform to the employers desire for work to be performed under their direction and control and direct how it will be performed.
There are 3 basic tests with a whole bunch of laws that apply. Here is the list of laws that apply.
Federal Insurance Contributions Act
Federal Unemployment Tax Act
Income Tax Withholding
Employment Retirement and Income Security Act
National Labor Relations Act
Immigration and Reform Control Act
Fair Labor Relations Act
Title VII (Civil Rights Act of 1964)
Age Discrimination in Employment Act
Americans with Disabilities Act
Family and Medical Leave Act (Untested at the Surpreme Court level)
The tests are: common law, Economic Realities test, and the Hybrid test (combination of the first two).
I would think that since the NCAA pays all health insurance, except except for a 90,000 deductible, which the colleges will cover to some extent or another at their determination. There are cases where athletes or their parents pay for the injuries sustained on the field of play (see requirement to attend and perform on the field as per the requirements of the scholarship). So, the first test is whether or not the school pays for insurance (yes). The second test is whether or not the school economically benefits from the performance of the player. Minnesota benefits because there are definable revenue streams that result from the student performing on the field. That satisfies the economic performance test. Does the athlete receive any definable benefits and must he meet some behavior standard in order to receive those benefits? Absolutely. See above. Have their been cases where students have their scholarship pulled for non performance? Yes.
That covers just the test of the Federal Insurance Contributions Act and I would think it has a chance at succeeding. Maybe 30%. Maybe better than 50/50 if more than one school organizes and applies for certification.
The cost of health care per athlete ran between 3 - 5 thousand. Not a small bill.
Why would the students want to organize? High deductibles that they pay when they get injured, even after the University's insurance kicks in to pay the NCAA high deductible. There are documented cases of students paying tens of thousands out of pocket for injuries related to football.
If anyone knows if the U has a deductible limit on its coverage, I certainly would like to know how we compare to other schools. Maybe as the paying sporting public we could pressure the U to cover it 100% and have zero out of pocket costs for the athletes. If we do pay 100% of the NCAA deductible of 90,000, that would be a nice recruiting talking point.
Some of the details come from
http://www.al.com/sports/index.ssf/2012/02/college_athletes_rights_ncaa_r.html and
http://www.bls.gov/opub/mlr/2002/01/art1full.pdf.