There is no doubt that the world of college athletics is shifting into an atmosphere that has yet to be seen. The amount of battles the NCAA is currently involved in goes to show a strong likelihood that substantial change is about to occur. Currently, the NCAA is lobbying lawmakers on Capitol Hill to pass federal legislation that would keep the amateur model intact by claiming college athletes are not employees, as well as give the NCAA an anti-trust exemption, and a uniform NIL law.[1] The NCAA is involved in a current NLRB complaint brought by the NLRB’s Los Angeles office against the NCAA, Pac-12 Conference, and USC for unfair labor practices, which a hearing will take place on Nov. 7 in Los Angeles. The NCAA has an antitrust suit pending against them in House v. NCAA, where athletes who were unable to benefit from NIL opportunities are seeking to be compensated for media rights revenue that was received by the NCAA due to those athletes’ participation. Lastly, and most relevant to this article, the NCAA is being sued by former Villanova football player Trey Johnson and other Division I athletes in Johnson v. NCAA, where the athletes are asking to be deemed employees under the Fair Labor Standards Act (FLSA), which would entitle them to minimum wage and overtime pay. The FLSA defines an employee as “any individual employed by an employer.” Which is clearly not very helpful when a court attempts to apply it, therefore, courts must come up with other methods to determine if an individual is an employee of an employer.
The Johnson case has been sent to the Third Circuit of Appeals on interlocutory appeal, meaning on a sole issue the district court beneath them decided, and a party (the NCAA) wants to stop the case and appeal that sole issue before continuing. That “sole issue” is whether athletes are employees as a matter of law. If the Third Circuit finds for the athletes, then the NCAA can appeal that decision to the Supreme Court, or the case will be returned to the district court, for that court to continue the case and evaluate the merits of the claim (meaning, did the NCAA actually violate the FLSA). While the NCAA would likely appeal the interlocutory decision by the Third Circuit to the Supreme Court if the NCAA were to lose, it would be rare for the Supreme Court to hear the case before it was evaluated on its merits. However, the decision to make athletes employees as a matter of law would cause a circuit split (discussed later), which would give the Supreme Court more reason to accept the interlocutory appeal.
The arguments appear to be broken up as follows. The athletes argue that they are “employees” under the FLSA because of the amount of control that the NCAA has over them. The NCAA argues the athletes are not employees because appellate courts before have set the precedent that athletes are not employees, the Department of Labor has stated athletes are not employees in their handbook, and it is not the NCAA that has significant control over individual athletes, but rather the individual universities.
While both sides make strong arguments, personally I believe it is clear that the NCAA displays a significant amount of control over the athletes. The NCAA controls athletes on what time of year recruiting takes place, the concept that athletes cannot be paid for play, the total number of scholarships certain teams can give out, the number of years of eligibility athletes have, what types of behavior will make an athlete lose their eligibility, and the NCAA allows conferences to schedule games for athletes forcing them to travel thousands of miles during a week, forcing them to miss classes. There is a laundry list of other items that the NCAA has in place that demonstrates control over the athletes as well.
However, the NCAA rebuts this argument with a strong one of its own. The Seventh Circuit of Appeals in Berger v. NCAA and the Ninth Circuit of Appeals in Dawson v. NCAA both set the precedent that student-athletes are not employees as a matter of law (this is why there is a circuit split). Meaning that in order to say an employer breached the FLSA, the plaintiff first must establish they have the potential to be an employee of the employer. The Seventh and Ninth Circuits found that athletes fail to establish even that potential and therefore, there is no point in litigating the case further. Those courts came to that decision because the NCAA and the concept of college athletics require a special set of circumstances in order to create a structure where student-athletes can play sports, the games can be televised to please millions of consumers, athletes can get an education in return for their play, and a system is created where the student can focus on education and athletics, rather than everything else that comes with a full-time job, such as taxes, lawsuits, bargaining, etc. The courts also gave credit to the Department of Labor which oversees enforcement of the FLSA, who in their handbook specifically stated the student-athletes are not employees.
While both the NCAA and student-athlete plaintiffs present strong arguments for why athletes do or do not meet the definition of employee under the FLSA, a major reason why I believe the Third Circuit will find for the NCAA in dismissing the case is that if student-athletes become employees under the FLSA it does not cure the current problems in the world of college sports. Those problems consist of athletic departments at the D1 level, and the NCAA making much more profit from television deals and portions of those profits could and should be shared with the athletes generating that revenue. Health and safety of the athletes when it comes to injuries related to their sports, and especially the long-term injuries and expenses that come with them after they leave their university. Missing classes and not being able to take the classes they want (the NCAA has time and time again said the amateur model should stay because they are students first). NIL rules and regulations to protect athletes avoid schools in certain states from gaining an edge over other schools in different states and a method to enforce rules against violators, including third-party entities, such as collectives. Ensuring that Title IX requirements are continued to be met. This is not an exhaustive list of all the problems in college sports, but it touches on the major ones. I would say you could look at the recent article published by the chair of the Division I Student Athletic Advisory Committee, but if you listen to Amanda Christovich on Conduct Detrimental’s podcast released on June 14, 2023, we get the sense that the letter submitted does not resemble the true desires of NCAA athletes.
While the Third Circuit is going to go into a deep analysis on which test should be used between the Berger, Dawson, Glatt (prior appellate decision that athlete plaintiffs want the court to use), or the Enterprise test (test that the district court used in this case), in the end the court is going to give some credit to the question, “will having the right to minimum wage and overtime cure the problem that is before them.” The simple answer to that is no. It can be argued that yes it can because this will be the first step and declaring them employees as a matter of law will lead to unionization, more beneficial laws for the athletes, and potential revenue sharing down the road. However, I do not believe the Third Circuit is going to view it in that manner and would attempt to solve the problem in more of a single swoop and would not make such a substantial decision in the hopes that it causes a domino effect.
All this being said, this is just my opinion and a panel of three judges could interpret things very differently than a third-year law student. However, if the panel asked me, I would say rule in favor of the NCAA because that is what history, precedent, and the purpose of the FLSA are ordering you to do. There is no doubt that student-athletes should be entitled to much more than they are given, but this is not the path. There is a chance that the NLRB will deem athletes as employees under the NLRA, which will give them the right to unionize and collectively bargain for things like health and safety policies, proper enforcement and guidance of NIL regulations, revenue sharing, abiding Title IX regulations, and allowing STUDENT-athletes to take the courses they desire and allow them to attend that course, as well as other future rights that athletes come up with. That type of solution makes much more sense to me, rather than attempting to pay every athlete minimum wage and overtime.
Logan Hughes is a third-year law student at Ohio Northern University. He can be found on Twitter @loganchughes23.
[1] See, Eric Prisbell, “As college sports transform thanks to NIL, here is the state of play” (June 19, 2023), https://www.on3.com/nil/news/as-college-sports-transform-here-is-the-state-of-play-nil-title-ix-ncaa/.
