The Ninth Circuit’s antitrust analysis in its recent college sports cases centers on whether amateurism offers a pro-competitive justification for its restraint on athlete compensation. Specifically, the question is whether the market for college football and basketball would suffer if universities paid their athletes. Despite this framing, there remains an implicit assumption driving the analysis—
the determination of whether to characterize athletes as “employee-athletes” or “student-athletes.”
This Article argues that rather than merely applying the relevant antitrust law, the Ninth Circuit court decisions emanate from an entirely different question—whether college athletes are employees. The assumptions the judges make about this seemingly unrelated question undergird their ultimate
conclusions about the appropriate antitrust remedy.

Having made the implicit assumptive concept explicit, the Article explores four key questions that should bear on the determination of whether college athletes are employees. The Article then concludes by proposing that the employee-athlete question is not bi-modal, but rather a spectrum, providing a map for universities and administrators eager to preserve the current status quo.
Part I explains the competing arguments raised by O’Bannon and their likely application in Jenkins. Part II argues that the real question does not concern economics and markets but instead rests upon the question of whether athletes are employees. Part III frames the potential analysis of the employee question by suggesting four indicia that ought to guide this determination. Finally, Part IV provides a road map for preserving the status quo in light of the employee-athlete question.