The NFL season may be over, but Formula 1 is gearing up for its season (which opens the weekend of March 14th) - the motorsport welcomes a brand new brand name partner for its Monaco grand prix. And the NWSL ramps up its sponsorship deals as it also prepares to kick off its season the weekend of March 14th. Tom Brady buys 50% stake in CardVault. The Boston-based sports card and collectables company will now be called "CardVault by Tom Brady". The Athletic The official time partner of Formula 1, TAG Heuer, becomes the first ever title partner of the Monaco Grand Prix. Formula 1 Gotham FC partners with Dove to support girls in sports and promote ways for young female athletes to stay in sports. The Dove logo will be featured on the back of the Gotham FC kits. Gotham FC The NWSL partners with Overtime to produce Gen-Z focused content. NWSL The Portland Thorns sign a partnership deal with Ring. The Ring logo will be featured on the front of the Portland kits. This deal is reportedly the highest valued jersey deal in NWSL history. Sportico Lewis Hamilton signs with lululemon as brand ambassador. Hamilton will work with lululemon's innovation, design and development teams to assist with future product development. Sports Illustrated Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

Introduction The Third Circuit’s departure under Johnson’s economic realities test provides a more workable standard than Glatt’s test for determining a student-athlete’s status under the FLSA but is not the best way to determine whether athletes should be considered employees under the FLSA. While the Third Circuit's rationale for the economic realities factor test for student-athlete employment is a positive step towards judging if an athlete is an employee and therefore qualified for protection under the FLSA, it falls a step short by not distinguishing between athletes in revenue-generating, and non-revenue-generating sports. Background College athletics have existed since the 1850's, following the path of the country, starting on the East Coast, and eventually traversing the nation spanning from sea to shining sea. As collegiate sports began to increase in popularity, President Theodore Roosevelt called a meeting in 1906, leading to the creation of the NCAA, and enacting rules forbidding college athletes from receiving payment or financial consideration.1 This choice requiring college athletes to maintain their amateur status began a century of tension, with the NCAA remaining steadfast in requiring athletes to play as amateurs, and athletes continually pushing for compensation for their performance. There have been numerous scandals around paying athletes, including SMU football’s “Death Penalty” punishment, and Johnny Manziel’s ability to capitalize on his Name, Image, and Likeness. Other athletes fought in the courtroom, seeking compensatory rights for college athletes through the judicial system. O’Bannon v. NCAA from the Ninth Circuit held that the NCAA was not immune to antitrust scrutiny, a win for some in the athlete community, but a ruling that stopped short of granting athletes’ access to profiting from their Name, Image, and Likeness or other forms of compensation.2  Alston v. NCAA  would change that. Alston allowed athletes to be compensated for their Name, Image, and Likeness; a watershed moment in college athletes' rights as a legal path to compensation now existed.3 Following Alston , the Third Circuit Court of Appeals in Johnson v. NCAA , sought to determine if college athletes as amateurs, were precluded from bringing claims under the Fair Labor Standards Act (FLSA).4 The court found that they were not. The athletes brought their case under claims they were not paid minimum wage under the FLSA. The District Court applied Glatt’s economic factors test, but the Appeals Court was unsatisfied with this test and instead remanded the case with instructions to retry it under its new economic realities test “grounded in common law principles.”5 Johnson  Test The Third Circuit developed their economic factors from dissatisfaction with the Glatt test comparing athletes to unpaid interns.6 Unpaid interns are assumed to benefit from internships as they enter “the relationship with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment”7  Johnson  held the test was incomplete when factoring in the “benefits” cited by the athletes which are more like those in a work environment. Instead of Glatt’s test, Johnson developed the economic realities factor test to determine if a student-athlete qualified for coverage under the FLSA. The four factors to consider are whether the athletes perform services for another party, whether the athlete’s services are necessarily and primarily for the other party’s benefit, whether the athletes are under the other party’s control or right of control, and whether the athletes perform their services in return for express or implied compensation or similar benefits.1 Analysis While the Third Circuit’s rationale for the development of the economic realities factor test was correct in ruling that collegiate student-athletes were protected by the FLSA, it fell one step short by not sub-dividing the group into athletes who participate in revenue-generating sports and athletes who do not participate in revenue-generating sports. This paper defines revenue-generating sports as football and men’s and women’s basketball. Some schools may have other sports which generate revenue, but those sports do not produce revenue with the same consistency a football or basketball program may. The revenue-generating sports are typically the sports that bring in the money for the athletic departments to operate the rest of the teams. In 2022, the average Division 1 football program brought in almost $32 million, and the average men’s basketball team brought in around $8 million.8 These revenue-generating athletes have a different set of opportunities than their non-revenue-generating colleagues, and because of that, separating them into two groups is the more appropriate legal framework. In general, collegiate student-athletes will meet at least two, often three of the Third Circuit’s economic realities factor test. Where cases will turn is on the facts. It can often be shown the athletes’ services are necessarily and primarily for the other party’s benefit. The categorization of athletes into revenue-generating and non-revenue-generating sports is important because of the final factor, where most cases will be decided, whether the athletes perform their services in return for express or implied compensation or similar benefits. While NIL compensation is permitted for athletes of all sports, most funds flow to athletes in revenue-generating sports as schools look to maximize their profiles, businesses hope to expand their brands, or athletes aim to maximize their value. There are certainly exceptions (the top NIL earner, Livvy Dunne, an LSU gymnast, participates in a traditional non-revenue-generating sport), but, in the first year of NIL, 95.7% of NIL funds were distributed to revenue-generating sports.9 This is understandable as research has found a correlation between athletic success and increased interest in a school, aka, the "Flutie Effect".10 By having such stratification in the groups, splitting the athletes into separate piles is necessary because their experiences around compensation likely will be so different. While a revenue-generating athlete might have the opportunity to engage with a collective or different entity around significant money tied to the athlete’s NIL rights, athletes in non-revenue-generating sports are much less likely to be afforded these opportunities, and typically the opportunities they do receive come in at significantly lower dollar amounts. The non-revenue-generating athletes will argue Johnson’s test in the acquisition of similar benefits or implied compensation, unlike the revenue-generating athletes who will have a greater likelihood of being able to bring evidence forward of express compensation. Revenue-generating athletes have access to fans on a much wider scale through television broadcasts and the media opportunities their sport provides them than non-revenue-generating athletes do. The television deals signed by football conferences or by the NCAA for their March Madness tournaments for basketball teams lead to most of the funding classifying these sports as revenue- generating. Conversely, non-revenue-generating sports are often held on regional sports networks, streaming services, or are only available behind a paywall, a barrier that limits the access these athletes could reach as their popularity is already starting with a severe disadvantage when compared to those athletes with nationally televised games. This is not to say a non-revenue-generating athlete cannot overcome this challenge, there are examples of those who have become wildly profitable by capitalizing on social media popularity, but even then, their athletic abilities are still only available to fans who put in the extra work to find these athletes and sports in the tucked away places, instead of the more prominently displayed platforms that the revenue-generating athletes often enjoy. On top of these classification challenges, courts also must consider policy concerns with applying the Johnson  test, including the optics of schools buying their players through bidding wars. Another question involves monitoring where this funding comes from. Private equity brings challenges and questions about the strings attached to the terms of the funding as returns on investments must be met.11 Other schools could opt for the “collective” approach, turning to donor networks to put funds into their players' pockets, but that blurs the lines between money from the outside and money being paid directly by the school to players, more like a pay-to-play model.12 Still others have taken on direct involvement adding a player tax to their tickets so fans can help offset the cost of acquiring top talent.13  Another concern is a sovereign fund looking to continue a sportswashing campaign by turning their attention to an American sports landscape with command over large swaths of the American public.14 These sovereign funds have deep enough pockets to bankroll any deal needed, but their ulterior motives will remain under scrutiny. Regardless of where funding comes from, other questions remain around the allocation of funds. If the football team brings in 95% of the revenue, should they get 95% of the funds, or should there be a more even distribution amongst the teams? Title IX and similar legislation will influence these decisions, as collectives push to fairly compensate players without causing more problems. In any instance where outside funding flows into a school, there will be a distinct advantage for revenue-generating athletes in receiving the funds, creating a need for splitting the group in two for proper analysis. Finally, especially in revenue-generating sports where budgets are typically significantly larger, this influx of money could impact the competitive landscape. There is a possibility of bigger, richer schools stashing players to keep their rosters deeper to the detriment of schools with smaller budgets, impacting the parity of college sports. Some courts believe that NIL will have the opposite effect, by allowing players to profit off their abilities, they will go where they can play and seen, grow their brand, and financially benefit.15 Ideally, this is correct, philosophically this is likely correct, but when a bigger school, with deeper pockets or more financial backing targets the same player as their rival, competitive nature could take over. There is a real possibility these funds could be used to pay players to remain on teams they would not otherwise stay with because of the financial resources available, constricting the competitive parity in college athletics instead of dispersing the talent to more schools. Professional sports teams engage in bidding wars to drive the price up on their rival or trade for a player to keep that player from joining another team, thereby strengthening their team, while also weakening another team. Is it unreasonable to think the same would not occur in college sports? These bidding wars are hypothetical, and could happen in any sport, but have a higher likelihood of occurring in sports with more money and funding, the revenue-generating sports, than in non-revenue-generating sports. Conclusion The Johnson ruling was an important piece in the discussion around student-athletes as employees under the FLSA, but without splitting athletes into the subcategories of revenue-generating sports versus non-revenue-generating sports, the economic factors test will cause further confusion and prove to be unworkable as the divide between groups continues to widen in college sports. 1  NCAA v. Alston , 594 U.S. 69, 76 (2021). 2  O'Bannon v. NCAA , 802 F.3d 1049 (9th Cir. 2015). 3  NCAA v. Alston , 594 U.S. 69, 107 (2021). 4  Johnson v. NCAA , 108 F.4th 163, 167 (3d Cir. 2024). 5  Id . at 167. 6  Id.  at 179, (quoting Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 535 (2d Cir. 2015)). 7  Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 535-536 (2d Cir. 2015). 8 George Malone, Which College Sports Make the Most Money? ,   Yahoo!Finance (March 21, 2022) https://finance.yahoo.com/news/college-sports-most-money-130012417.html . 9 Margaret Fleming, As NIL Turns Three, Collectives and Football Still Control the Industry , Front Office Sports (July 1, 2024, 5:31 PM), https://frontofficesports.com/as-nil-turns-three-collectives-and-football-still-control-the- industry/ . 10  Johnson 108 F.4th at 169 (speaking about Professor Doug Chung’s research and findings that athletic programs are “higher education’s primary form of mass media advertising.”) 11 Eben Novy-Williams, Daniel Libit, FSU’s ‘Project Osceola’ Private Equity Push Began in 2022: Docs , Sportico (January 30, 2024, 5:13 PM), https://www.sportico.com/leagues/college-sports/2024/fsu-project-osceola-private- equity-jp-morgan-1234764861/ . 12 Pete Nakos, What are NIL Collectives and how do they operate? , On3 (July 6, 2022), https://www.on3.com/nil/news/what-are-nil-collectives-and-how-do-they-operate/ . 13 Chris Low, Tennessee increases ticket prices by 10% to help pay athletes , ESPN (September 17, 2024, 2:56 PM), https://www.espn.com/college-football/story/_/id/41302985/tennessee-ups-season-ticket-prices-10-help-pay- athletes . 14 Jeff Hauser, Jason Jones, Former Colorado coach says he sought NIL funding from Saudi Arabia’s PIF in unprecedented move , Sports Illustrated (August 26, 2024), https://www.si.com/college/colorado/football/colorado- sought-nil-funding-from-saudi-arabia-pif-in-unpreceded-move . 15  Ohio v. NCAA , 706 F. Supp. 3d 583, 594 (2023).

In Johnson v. NCAA , the Third Circuit allowed student-athletes to bring claims for relief under the Fair Labor Standards Act (FLSA), creating a baseline test for employee status in college athletics. [i] The Johnson court rejected the lower court’s use of the Glatt test [ii] (used for employment questions involving unpaid internships), [iii]   recognizing that student-athletes are sui generis and requiring a new employment test. [iv] The resulting “economic realities” test involves four factors: (1) whether athletes perform services for another party; (2) whether these services primarily benefit that party; (3) whether the athletes are under the party's control; and (4) whether they receive compensation or benefits. [v] However, the Third Circuit did not decide if student-athletes are employees, [vi] so the Johnson court’s test has not been used in practice, the test unused and its future uncertain. Despite concerns, the Johnson test’s rationale suggests it may become a mainstay in student-athlete employment cases. I.              RATIONALE OF THE THIRD CIRCUIT’S “ECONOMIC REALITIES” TEST The first factor examines the services student-athletes provide to their respective schools, [vii] acknowledging that players engage in rigorous, [viii] often violent [ix] activities that generate significant university revenue. Student-athletes have highlighted this connection as suggesting a service relationship, [x] as reinforced by the Johnson Court’s finding that athletics are distinct from education and can even negatively impact one’s learning. [xi] The second factor of the Johnson test assesses whether student-athlete services primarily benefit of their schools. [xii] College sports programs receive substantial revenue through media rights deals, ticket sales, and booster gifts. [xiii] While schools have cited educational and developmental benefits, [xiv] this factor hints that academic compensation is not enough to overcome the massive monetary benefit that schools enjoy (and pre- House, did not have to share) [xv] because of their student-athletes’ work.          The test’s third factor asks whether student-athletes have autonomy at their schools or if they are under university control as players. [xvi] The third factor of Johnson looks at how universities dictate student-athlete training schedules, [xvii] team-mandated events, [xviii] and personal conduct expectations, [xix] which resemble employer-employee relationships and regulations. [xx]          The final Johnson factor asks whether schools compensate their athletes. [xxi] Benefits may come in non-traditional senses, like academic scholarships, [xxii] or more common forms (i.e., cash payments). [xxiii] Universities have pointed to scholarships and stipends as forms of player compensation, [xxiv] but this factor seems to take a wider view, asking whether these benefits can be compared to typical modes of employment compensation. II.            PRACTICAL CONSIDERATIONS OF THE “ECONOMIC REALITIES” TEST The most important practical consideration in adopting the Johnson “economic realities” test is creating uniformity across jurisdictions. Designating the Johnson test as uniform across the country would standardize how courts analyze student-athlete employment claims, an important notion in a time where courts in several states face student-athlete employment questions [xxv] (and others previously decided against FLSA employment status). [xxvi] While inconsistent results on similar employment questions from state-to-state would undermine student-athlete employment claims overall, having a nationwide standard like the “economic realities” test would help to reduce uncertainty and promote consistent legal outcomes from jurisdiction to jurisdiction, a massive benefit during a time when state Name, Image, and Likeness (NIL) laws have created uncertainty in other areas of college athletics. [xxvii] Another important consideration of the Johnson test is that it balances university interests (i.e., maintaining amateurism) [xxviii] and athlete rights (i.e., the right to fair compensation for the services they render to schools). [xxix] As discussed supra , the Johnson court did not make a finding of employment status for the student-athletes in the case. [xxx] This finding (or lack thereof) seems to imply that athletes could still be found to be non-employees under the “economic realities” test, allowing for a case-by-case analysis as opposed to broadly classifying athletes as either employees or non-employees. This premise is underscored by Judge Porter’s concurrence in Johnson , where he suggested that high revenue-generating athletes like college basketball and football players would likely be viewed as employees, but others would not, showing that the “economic realities” test may not be applicable to all student-athletes but can be applied in narrow circumstances. [xxxi] Finally, the “economic realities” applies broadly across all NCAA sports. The Johnson test’s framework does not favor a particular sport or classification of athlete, instead focusing on objective standards that compare a student-athlete’s relationship with their school to that of an employer and employee. [xxxii] The “economic realities” test appears ripe to be used on a wide variety of college sports, as the test’s factors recognize the diverse nature of college athletics (including the variance among schools’ structure and economic considerations, issues that have been brought to light as schools prepare for a potential House settlement) [xxxiii] and do not favor any one class of athletes above others. This was especially relevant in the case of Johnson , where most of the plaintiffs did not play high-revenue sports and attended small, northeast Division 1 schools. [xxxiv] III.          IS THE JOHNSON TEST THE BEST APPROACH? While the “economic realities” test is advantageous due to its flexibility, sensitivity to context, and focus on real-world outcomes, it has faced concerns for being subjective, complex, and administratively difficult to implement, leaving the applicability of the test in question. However, the benefits of the Johnson test far outweigh its drawbacks, making the “economic realities” test the best available approach to answering questions of student-athlete employment. The Johnson test should be adopted due to its ability to adapt to a variety of different facts and contexts, as well as its focus on practical decisions. This “economic realities” test is highly flexible, given its lack of favoritism towards a particular sport, discussed supra . The ability to use this test in different types of employment cases is essential, given the wide variety of sports and schools across the NCAA. [xxxv] Further, nationwide application of the Johnson test would help to reduce concerns over a lack of jurisdictional reach (i.e., how a court in the Eastern District of Pennsylvania, like Johnson , would be able to control the employment status of a student athlete in California). [xxxvi] Lastly, because this test focuses on the economic relationship between the parties [xxxvii] (as opposed to traditional definitions of ‘student-athlete’ titles), the test seems to match the FLSA’s purpose of protecting workers that depend economically on their employers, [xxxviii] making it a strong fit to be the benchmark test in college athletics employment cases. However, the “economic realities” test (like any other test) is not without its pitfalls. Analysis of the Johnson test’s factors involves subjective judgment, which may lead to inconsistent outcomes if the factors are weighed differently from court to court. [xxxix] In addition, recognizing student-athletes as employees (even in small numbers) would cause significant changes to the college athletics landscape, serving as a strong challenge to the NCAA’s beloved amateurism model. [xl] Student-athlete employment recognition could also lead to player strikes (or lockouts), [xli] a reduced number of college sports being offered, [xlii] or increased pressures to further commercialize the industry. [xliii] Further, the test seems to lack clarity as to how international players (who largely play under F-1 academic visas) [xliv] would be treated if granted employee status (potentially requiring an employment visa with different restrictions and considerations). [xlv] Lastly, to recognize players as employees would place a significant administrative burden on universities in reclassifying their athletes. Schools would now be faced with concerns over labor laws, taxation, and benefits for a large new subset of employees, which could pose challenges for smaller institutions that typically generate less revenue. [xlvi] These concerns will lead opponents (mainly universities and the NCAA itself) to argue that Johnson is a low bar for determining employment, asking courts to ignore this test in answering student-athlete employment questions. Despite these concerns and potential challenges to the “economic realities” test (including those from Congress), [xlvii] it remains the best approach for both sides in facing future student-athlete employment questions. While Johnson does not offer lofty standards for determining employment, this should not be viewed as a negative: more employee findings will enable the potential for collective bargaining (including potential no-strike and no-lockout clauses, which are used in many collective bargaining agreements, or CBAs), [xlviii] allowing schools and athletes to be clear on their rights and privileges and helping to quell the unrest fueled by the NCAA’s near-constant litigation over player rights since 2021. [xlix] If a school and its unionized players agree to a CBA, future student-athlete claims against their university (or the NCAA) would also be governed by the non-statutory labor exemption (NSLE), [l] thus preventing the types of antitrust claims the NCAA faced in House , [li] O’Bannon , [lii] and Alston , [liii] among others — an especially important notion in light of Justice Kavanaugh’s Alston concurrence, which foreshadowed a willingness for additional college athletics compensation changes in the future. [liv] Even without union status, players who are found to be employees will have their claims governed under labor and employment law (as opposed to antitrust law), [lv] allowing the NCAA and its member institutions to narrow their litigation focus. In addition, while considerations for international players are important, they were not addressed in House , [lvi] so it appears that international student-athletes will need additional litigation/legislation to address their specific needs. However, a lack of international student-athlete protection should not bar a much larger class of athletes from employment status findings by preventing the Johnson test from becoming a nationwide standard. Finally, while potential school administrative challenges in reclassifying student-athletes may be relevant, these same universities eagerly announced new plans and proposals following the news of a potential House settlement, [lvii] so it appears that many institutions are willing and able to handle massive structural changes — so long as they stand to benefit from them. [lviii] The mere fact that employment status will grant additional rights to student-athletes should not allow schools to avoid change in one area only to promote it in another. Johnson should be the mainstay test in determining future questions of student-athlete employment, helping to provide clarity and equitable outcomes for both players and their universities amidst a shifting landscape. [i] Johnson v. NCAA , 108 F.4th 163 (3d Cir. 2023). [ii] Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2016). [iii] Johnson , 108 F.4th at 179–181. [iv] Id. at 177. [v] Id; Conduct Detrimental, 2024 Sports Law Writing Competition , LinkedIn (Oct. 1, 2024), https://www.linkedin.com/posts/conduct-detrimental_its-that-time-of-year-following-the-activity-7246894524596203524-UBYz/?utm_source=share&utm_medium=member_ios. [vi] Johnson , 108 F.4th at 180. [vii] Id . [viii] Furman Football Player Bryce Stanfield Dies 2 Days After Collapsing During Workout , AP (Feb. 9, 2024, 5:50 PM), https://apnews.com/article/furman-626a0edbac66c2d99a5252e177cac1d9 ; Sara Ruberg, Tufts Lacrosse Players Recovering After Navy SEAL-Led Workout Draws Inquiry , New York Times (Sept. 26, 2024), https://www.nytimes.com/2024/09/26/us/tufts-university-lacrosse-team-hospitalized.html . [ix] Declan Gallagher, College Football Star Showing "Remarkable Strength" After Paralyzing Injury , Men's Journal (Aug. 27, 2024, 2:58 PM), https://www.mensjournal.com/news/college-football-jason-pugal-paralyzing-injury ; Jason Hahn , Eric LeGrand, Who Was Paralyzed in a College Football Game 10 Years Ago, Continues to Inspire , People (May 21, 2021, 3:42 PM), https://people.com/sports/eric-legrand-football-paralyzed-coffee-shop/ . [x] Parker Purifoy, NLRB Targets College Athletes’ Busy Schedules in NCAA Trial , Bloomberg Law (Dec. 19, 2023, 2:43 PM), https://news.bloomberglaw.com/daily-labor-report/nlrb-opening-testimony-details-school-ncaa-control-over-players . [xi] Johnson , 108 F.4th at 180. [xii] Id . [xiii] Grant Hughes, College Athletics' 25 Powerhouses Who Produce the Most Revenue Entering 2024 , 247Sports (Jun. 28, 2024, 12:30 AM), https://247sports.com/longformarticle/college-athletics-25-powerhouses-who-produce-the-most-revenue-entering-2024-233312519/ . [xiv] Johnson , 108 F.4th at 169–171, 193. [xv] Jonathan D. Wohlwend, Taking It to the House: Preliminary Approval of Settlement in House v. NCAA Could Bring Significant Changes to College Sports , National Law Review (Oct. 15, 2024), https://natlawreview.com/article/taking-it-house-preliminary-approval-settlement-house-v-ncaa-could-bring . [xvi] Johnson , 108 F.4th at 180. [xvii] Parker Purifoy, NLRB Targets College Athletes’ Busy Schedules in NCAA Trial , Bloomberg Law (Dec. 19, 2023, 2:43 PM), https://news.bloomberglaw.com/daily-labor-report/nlrb-opening-testimony-details-school-ncaa-control-over-players . [xviii] Michelle Brutlag Hosick, All DI Sports Allowed to Hold Team Meetings, Other Nonphysical Activities , NCAA (Apr. 16, 2020, 12:52 PM), https://www.ncaa.org/news/2020/4/16/all-di-sports-allowed-to-hold-team-meetings-other-nonphysical-activities.aspx. [xix] Student Athlete Conduct Expectations , Drexel University (Jul. 24, 2023), https://drexeldragons.com/sports/2023/7/24/student-athlete-conduct-and-expectations . [xx] Amanda Christovich, Hearings Have Concluded in the Pivotal USC Athlete Employment Case. What’s Next? , Front Office Sports (Apr. 19, 2024, 4:10 PM), https://frontofficesports.com/hearings-have-concluded-in-the-pivotal-usc-athlete-employment-case-whats-next/ . [xxi] Johnson , 108 F.4th at 180. [xxii] Kaitlin Broadway, New NCAA Scholarship and Roster Limits for the 2025-26 School Year , NCSA Sports (last visited Nov. 7, 2024), https://www.ncsasports.org/blog/ncaa-scholarship-roster-limits-2024 . [xxiii] Sara Coello, What is NIL in College Sports? How Do Athlete Deals Work? , ESPN (Sept. 26, 2024, 2:16 PM), https://www.espn.com/college-sports/story/_/id/41040485/what-nil-college-sports-how-do-athlete-deals-work ; Top 5 "Pay to Play" Scandals Rocking College Football , The Week (Jan. 8, 2015), https://theweek.com/articles/488252/5-pay-play-scandals-rocking-college-football . [xxiv] Johnson , 108 F.4th at 174. [xxv] Trs. of Dartmouth Coll. & Serv. Emps. Int'l Union, Local 560, N.L.R.B. No. 01-RC-325633, at 18, 2024 NLRB Reg. Dir. Dec. LEXIS 17 (Feb. 5, 2024); Steve Berkowitz, NCAA, Pac-12, USC Trial Begins With NLRB Over Athletes' Employment Status , USA Today (Nov. 8, 2023 2:43 PM), https://www.usatoday.com/story/sports/college/2023/11/07/ncaa-pac-12-usc-student-athlete-misclassification-trial/71483085007/ . [xxvi] Berger v. NCAA , 843 F.3d 285 (7th Cir. 2016); Dawson v. NCAA , 932 F.3d 905 (9th Cir. 2019). [xxvii] NIL Legislation Tracker , Saul Ewing (last visited Nov. 7, 2024), https://www.saul.com/nil-legislation-tracker#:~:text=Student%2Dathletes'%20remedies%20vary%20under,reasonable%20attorneys'%20fees%20and%20costs. [xxviii] Johnson , 108 F.4th at 171–75. [xxix] Id. at 172–174. [xxx] Id. at 180. [xxxi] Id. at 184–85. [xxxii] Id. at 177–180. [xxxiii] Ross Dellenger, Historic House-NCAA Settlement Leaving Hundreds of Olympic Sport Athletes in Peril , Yahoo Sports (Oct. 25, 2024), https://sports.yahoo.com/historic-house-ncaa-settlement-leaving-hundreds-of-olympic-sport-athletes-in-peril-125238713.html . [xxxiv] Johnson , 108 F.4th at 185. [xxxv] Overview , NCAA (last visited Nov. 7, 2024), https://www.ncaa.org/sports/2021/2/16/overview.aspx (highlighting 1,100 member schools and 24 offered sports). [xxxvi] Johnson , 108 F.4th at 183–85. [xxxvii] Id. at 180. [xxxviii] Wages and the Fair Labor Standards Act , Department of Labor (last visited Nov. 7, 2024), https://www.dol.gov/agencies/whd/flsa#:~:text=The%20Fair%20Labor%20Standards%20Act%20(FLSA)%20establishes%20minimum%20wage%2C,%2C%20State%2C%20and%20local%20governments. [xxxix] Johnson , 108 F.4th at 183–84. [xl] Id. at 181–82. [xli] Michael McCann, College Athlete Union Push Arrives as Schools Face Budget Clouds , Sportico (Feb. 26, 2024, 5:55 AM), https://www.sportico.com/law/analysis/2024/college-athletes-employees-challenges-1234768155/ . [xlii] Ross Dellenger, Historic House-NCAA Settlement Leaving Hundreds of Olympic Sport Athletes in Peril , Yahoo Sports (Oct. 25, 2024), https://sports.yahoo.com/historic-house-ncaa-settlement-leaving-hundreds-of-olympic-sport-athletes-in-peril-125238713.html . [xliii] Eben Novy-Williams, RedBird, FSU Trustee Launch College Sports Investment Fund , Sportico (May 22, 2024, 7:00 AM), https://www.sportico.com/business/finance/2024/collegiate-athletic-solutions-redbird-weatherford-college-sports-fund-1234779859/. [xliv] Bryan Dearinger, Name, Image, and Likeness: International Student-Athletes , University of Oregon (last visited Nov. 7, 2024), https://generalcounsel.uoregon.edu/name-image-and-likeness-international-student-athletes#:~:text=Of%20the%20three%20visa%20categories,and%20deserves%20a%20brief%20background. [xlv] Employment-Based Immigrant Visas , U.S. Dept. of State, (last visited Nov. 7, 2024), https://travel.state.gov/content/travel/en/us-visas/immigrate/employment-based-immigrant-visas.html . [xlvi] Dr. Kevin Blue, Limit Spending to Save College Sports , Athletic Director U (last visited Nov. 7, 2024), https://athleticdirectoru.com/articles/limit-spending-to-save-college-sports/#:~:text=At%20the%20Power%20Five%20level,will%20create%20a%20way%20forward. [xlvii] Michael McCann, Congress to Consider Bill Declaring College Athletes Are Not Employees , Sportico (Jun. 12, 2024, 2:38 PM), https://www.sportico.com/law/analysis/2024/ncaa-antitrust-settlement-congress-athletes-employee-debate-1234783946/ ; Ross Dellenger, Why This Could Be the Most Consequential Election in College Sports History , Yahoo Sports (Nov. 4, 2024, 2:57 PM), https://sports.yahoo.com/why-this-could-be-the-most-consequential-election-in-college-sports-history-194605687.html. [xlviii] No Strikes or Lockouts Clauses , Bloomberg Law (last visited Nov. 7, 2024), https://www.bloomberglaw.com/external/document/XDV72MBG000000/labor-relations-overview-no-strikes-or-lockouts-clauses. [xlix] Jake Goidell, The NCAA Antitrust Lawsuits Will Not Pay Off for College Athletes Without a Permanent Players Association , ProMarket (Jul. 17, 2024), https://www.promarket.org/2024/07/17/the-ncaa-antitrust-lawsuits-will-not-pay-off-for-college-athletes-without-a-permanent-players-association/ . [l] Chris Yates, Nonstatutory Labor Antitrust Exemption Risk in Sports Unions , Law360 (Dec. 5, 2022, 4:07 PM), https://www.lw.com/admin/upload/SiteAttachments/Nonstatutory-Labor-Antitrust-Exemption-Risk-In-Sports-Unions.pdf. [li] House v. NCAA , 545 F. Supp. 3d 804 (N.D. Cal. 2021). [lii] O'Bannon v. NCAA , 802 F.3d 1049 (9th Cir. 2018). [liii] NCAA v. Alston , 594 U.S. 69 (2021). [liv] Id. at 107–112. [lv] Matthew Dimick, Conflict of Laws? Tensions Between Antitrust and Labor Law , University of Chicago Law Review (Mar. 4, 2024), https://lawreview.uchicago.edu/sites/default/files/2023-03/04_SYMP_DIMICK.pdf . [lvi] House , 545 F. Supp. 3d 804. [lvii] Caleb Spinner, Incoming AD Ross Bjork Commits Ohio State to NCAA Revenue-Sharing Program , SI (Jun. 20, 2024), https://www.si.com/college/ohiostate/news/incoming-ad-ross-bjork-commits-ohio-state-to-ncaa-revenue-sharing-program-01j0pdq07r90#:~:text=The%20more%20money%20a%20sport,be%20available%20for%20its%20players.&text=Ohio%20State%20will%20be%20permitted,its%20over%201%2C000%20varsity%20athletes ; Mike McDaniel, Power Conferences Set Initial Revenue Sharing Cap Number for College Sports in 2025 , SI (Nov. 1, 2024), https://www.si.com/college/power-conferences-set-initial-revenue-sharing-cap-number-for-college-sports-2025#:~:text=Revenue%20sharing%20across%20college%20sports,from%20Ross%20Dellenger%20of%20Yahoo . [lviii] Chris Kudialis, NIL athletes are thriving. But how do colleges and universities benefit? , Volt (Sept. 18, 2024), https://voltedu.com/marketing-branding/nil-athletes-are-thriving-but-how-do-colleges-and-universities-benefit/#:~:text=%E2%80%9CSo%20more%20schools%20are%20avoiding,higher%20than%20as%20a%20pro ; Troy Brock, College Football Fans Largely Footing the Bill for Colleges and NIL , SI (Nov. 5, 2024), https://www.si.com/fannation/name-image-likeness/nil-news/college-football-fans-largely-footing-the-bill-for-colleges-and-nil.

Jannik Sinner, the currently ranked No. 1 player in the world, has accepted to serve an immediate   three-month suspension  for two positive drugs tests last year.   The suspension will span from February 9 – May 4.  Significantly, Sinner will be able to participate in the next Grand Slam event, the French Open at Roland Garros, which begins on May 19. Sinner will not be able to train until 13 April and will miss the upcoming tournaments at the Miami Open, Indian Wells, Monte Carlo Masters and the Madrid Open. According to the International Tennis Integrity Agency (ITIA),  Sinner tested positive for the prohibited substance clostebol twice in March 2024.  Specifically, Sinner provided an in-competition sample at the ATP Masters 1000 event in Indian Wells, California, USA, on March 10, 2024, which had the presence of low levels of clostebol. A second sample provided eight days later, also tested positive for clostebol at low levels.   Sinner has maintained that the positive tests resulted from a massage  from a trainer who used a substance to treat a cut on his finger.  The ITIA accepted this explanation and found that the violation was not intentional.  The World Anti-Doping Agency (WADA), nonetheless, appealed the ruling before the Court of Arbitration for Sport (CAS) and sought a suspension between one and two years. In a published statement , WADA accepted  Sinner’s explanation and that he did not intend to cheat: “WADA accepts that Mr. Sinner did not intend to cheat, and that his exposure to clostebol did not provide any performance-enhancing benefit and took place without his knowledge as the result of negligence of members of his entourage. However, under the Code and by virtue of CAS precedent, an athlete bears responsibility for the entourage’s negligence. Based on the unique set of facts of this case, a three-month suspension is deemed to be an appropriate outcome.” In light of the agreement reached with Sinner, WADA has formally withdrawn its CAS appeal. Following the announcement of the resolution, The Professional Tennis Players Association (PTPA) strongly criticized  the current anti-doping system, namely, taking issues with the lack of consistency in how cases are handled and the “lack of commitment from the ATP, WTA, Grand Slams, ITIA, and WADA to reform and create a fair and transparent system going forward.”   The Sinner case highlights the impact of actual or perceived bias regarding rules  and may be the trigger for change in professional tennis and its governing bodies and organizations.  Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA, and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via email at kwinkler@bfvlaw.com .

Lawsuits around Title IX and the evolving Name, Image, and Likeness (NIL) era are not new. However, the combination of these two issues is uncharted territory. With the surge in women’s sports, with the aid of the intense March Madness match ups, the WNBA, and the new Unrivaled league, discussions surrounding the equal opportunities for women’s sports have become more prominent. Currently, the University of Oregon is at the center facing the first known lawsuit that regards Title IX and NIL.   Title IX: A Step Forward   Enacted in 1972, Title IX is a federal law that bans sex discrimination in any educational institution that receives federal funding. This law prohibits sex discrimination in education resulting in institutions providing equal opportunities and treatment for both female and male student-athletes.   While Title IX was a monumental step toward gender equality in education and sports, its application has been uneven, especially when it comes to providing equitable opportunities in athletic programs.   As the NIL landscape grows, gender equity in sports is facing different challenges. With NIL allowing student-athletes to profit from their name, image, and likeness, athletes now have opportunities that have never existed. Though this is monumental, this shift has also exposed the gaps in how male and female athletes are supported, especially when it comes to funding and the support for women to take advantage of these opportunities.   Schroeder v. University of Oregon   Schroeder v. University of Oregon  is believed to be the first lawsuit  that specifically addresses gender inequalities with NIL opportunities for student athletes. On December 1, 2023, 32 female athletes from the beach volleyball team and women’s rowing club files a class action lawsuit alleging that the University of Oregon provided too few scholarships, poor quality gear, and improper facilities. Specifically , beach volleyball members recall instances where the removal of drug paraphernalia and feces from the sand was required before practice. This lawsuit highlights the disparities in funding between men’s and women’s sports. The complaint alleges the spending disparities between the men’s and women’s programs. It is claimed that the university allocated only 15% of its recruiting budget and 25%  of its athletic spending to women, despite female athletes constituting nearly half of the university’s varsity sports roster. A Milestone Scholarship In 2024, the very first scholarship  in beach volleyball history was received by Gwen Fife. This milestone marks progress toward gender equality in sports at the University of Oregon, but it also raises and important questions: Why did it take until 2024 for the first scholarship to be received by a beach volleyball player? While the university celebrates the achievement, it shines a spotlight on the ongoing challenges female athletes face, particularly in sports that have historically received less attention and investment. This delayed recognition brings up important issues about resource allocation and the historical underfunding of women’s sports programs. This achievement is a step towards the right direction. However, this is a reminder that progress in women’s sports is overdue and littered with boundaries and obstacles. Latest Case Updates The University of Oregon recently filed a motion for a protective order to stay discovery, requesting a delay until the court rules on its pending motions to dismiss parts of the case. The university contends that the plaintiffs failed to demonstrate mistreatment based on sex and challenged the statute of limitations, proposing that it should be one year instead of two or six. If the court agrees, the university claims that all of the women’s rowing club plaintiffs' claims should be dismissed. However, U.S. District  Court Judge Michael McShane denied the motion, stating that there was no valid reason to delay discovery and expressing doubt that the plaintiffs would be unable to state a valid claim for relief. This ruling allows the case to move forward. Setting a Precedent for the Future This legal battle could set a precedent for other lawsuits combining Title IX and NIL issues, potentially reshaping the way universities handle gender equity in athletics. As more female athletes capitalize on NIL opportunities, this case could prompt universities to reevaluate their policies and practices in supporting their athletes in navigating this new era. By exposing the disparities in NIL opportunities, this case allows for the publicity and recognition of these issues, pushing the much-needed change. Not only could this case reshape how universities manage NIL, but it could also influence future NCAA rules and regulations. The Hope for Women’s Sports As this lawsuit progresses, there is hope that this will cause a ripple effect of change for women’s sports. Universities must reevaluate how they allocate resources, supports women’s athletics, and sure the compliance of Title IX in this new NIL era. With this case being the first of its kind, there is hope that this will create the landscape to improving equality with women’s sports and aid the in this long-fought battle. The fight for equal treatment in college athletics is far from over. The  Schroeder v. University of Oregon  case is just the beginning of a larger movement that will determine the future of women’s sports in the NIL era. Katherine Vescio is a 1L at University of Gonzaga School of Law. She can be found on LinkedIn .

Super Bowl LIX will be jam packed with historic milestones, crazy plays, and celebrity girlfriends. While fans focus on game-winning plays and who the camera is panning to, a different kind of battle is unfolding behind the scenes. Surprisingly, this battle is trademarks. Over the past two weeks the NFL and both teams have been busy either protecting, filing, or licensing trademarks. From viral plays to iconic phrases, intellectual property has become a huge part of football. It all started in 1969 where the NFL was granted a trademark registration for the phrase “SUPER BOWL.” Since then, the NFL has made a conscious effort to protect the mark. To do so, the NFL sends cease-and-desist letters to alleged infringers, where no company or organization is safe. Famously, in 2007, the NFL sent a cease-and-desist letter to an Indiana church group for advertising a “Super Bowl” viewing party charging a $3.00 entry fee to cover snacks. The NFL may seem unreasonable for going after such tiny organizations, but they have no choice but to defend their trademark. The trademark owner must actively protect their mark or else the mark would be abandoned. This would mean they have given up their rights to the trademark by ceasing to use it without any intention of resuming use, potentially allowing others to use the mark freely.  To avoid cease and desist letters many companies say, “The Big Game,” “Football’s Favorite Day,” and “The Big Matchup” to infer the Super Bowl and not to infringe on the Super Bowl trademark. A company is allowed to use the phrase “Super Bowl” in their ads when they have a license agreement. A license agreement is a legal contract that gives one party the right to use another party's intellectual property (trademark) or physical property. Through all these agreements the NFL makes a massive amount of money. To keep the license agreements, the NFL must defend their trademarks. If they do not defend their trademarks, then they will diminish in value. This strict enforcement ensures that only official partners and sponsors can capitalize on the name, reinforcing the exclusivity and prestige of Super Bowl-related marketing. The NFL’s trademark enforcement isn’t just about legal compliance, it’s a core part of their business strategy, ensuring the Super Bowl remains one of the most commercially valuable sporting events in the world. Conversely, Philadelphia’s dominance on the field has been powered by their controversial yet effective “Tush Push” play where a quarterback sneak has become nearly unstoppable. The team took things a step further in December 2023 by filing a trademark application for “Tush Push.” If registered, the Eagles will own the right to use the phrase on apparel, ensuring no competitors profit from the viral name. This move isn’t just about protecting a phrase; it’s about turning on-field success into off-field   business ventures. By receiving a trademark registration for their signature play, the Eagles are proving they are just as strategic off the field as they are on it. On the other sideline, the Kansas City Chiefs are on the verge of trademark history. If they secure a third consecutive championship, they will officially achieve a "Three-Peat” which no NFL team has done in the Super Bowl era.  However, the NFL and Chiefs can’t freely market the term because it doesn’t belong to them. Pat Riley, the legendary NBA coach, received a trademark registration for “Three-Peat” back in 1988 when he was coaching the Lakers. Since then, he has earned royalties by licensing the phrase for championships across multiple sports. Anticipating the Chiefs' potential three-peat, the NFL struck a licensing deal with Riley to use the term on official NFL merchandise. This highlights how trademarks aren’t just short-term plays, they can hold value for decades, especially when tied to historic sports moments. Even established stars recognize the power of trademarks. Saquon Barkley, one of only nine players in NFL history to rush for 2,000 yards in a season, capitalized on this milestone by filing a trademark for “2K SA.” Meanwhile, rookie Quinyon Mitchell, after a regular season with no interceptions, made headlines with two clutch picks in the playoffs and followed up by filing for the trademark “Quinyonamo Bay.” Philadelphia Eagles center Cam Jurgens also joined the trademark movement, filing for ‘JURGY’ just days before the Super Bowl to protect his line of beef jerky and related merchandise. Jurgens originally launched the business during his time at the University of Nebraska as an NIL venture, and now he's ensuring his brand grows on the national stage. These filings demonstrate how players at all stages of their careers are seizing key moments to build their personal brands and extend their influence off the field. The Super Bowl isn’t just about touchdowns, highlight plays, and championship moments, it’s also about trademarks, branding, and business moves that extend far beyond the field. As the final whistle blows, and one team lifts the Lombardi Trophy the smartest organizations and athletes are leveraging their intellectual property to secure their legacies long after the season ends. Chris D'Avanzo is a graduate of the Maurice A. Dean School of Law at Hofstra University. He may be found on Twitter at @_chrisdavanzo.

Swifties aren't the only third-parties celebrating the potential Kansas City three-peat - so is Pat Riley. Red Bull is hot on motorsports - after its recent success with Formula 1, it is set to return to NASCAR. And the brand new Women's Lacrosse League signs a major brand as its title sponsor. NFL signs deal with Pat Riley to use his trademark "three-peat". While serving as head coach of the Lakers, Pat Riley trademarked "three-peat" after the Lakers won back-to-back NBA championships in 1987 and 1988. Though the Pistons dethroned the Lakers in 1989, Pat Riley is able to capitalize on his trademark everytime a team is up to win three consecutive championships. Sporting News Red Bull partners with Trackhouse in its return to NASCAR. Sports Business Journal Maybelline to become title sponsor for the Women's Lacrosse League. Inside Lacrosse WNBA stars Lexie Hull and Kate Martin sign with Athleta as brand ambassadors. Forbes Formula 1's Charles Leclerc signs deal with Eight Sleep as an ambassador and investor. Business Wire Texas Longhorns QB Arch Manning signs NIL endorsement deal with Red Bull. The deal is reported to be valued at $6.6M, the highest valued endorsement deal with any college or high school athlete. Bleacher Report Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

Introduction   For some, the line between work and play is firmly etched into the fabric of time itself, typically around 5:00 PM (or maybe 4:00 on Fridays). But for others, the line can be fluid—what may appear as “play” to one person can still carry the hallmarks of “work” for another, especially when structured obligations are involved.   The Fair Labor Standards Act (“FLSA” or “Act”) provides protections to many American workers, but its intentionally vague language has forced courts to craft varying, fact-intensive tests to determine the Act’s scope. The Third Circuit in Johnson v. NCAA  crafted their own set of factors to determine whether college athletes could ever be covered by the FLSA, while also suggesting the ultimate guidance on the question is an analysis of an athlete’s “economic realities.” While the test is an improvement on most alternatives, it still has the potential to be underinclusive and create a circuit split. The test could also be refined to better capture the essence of college sports.   The FLSA’s Broad Definitions   The Johnson decision is grounded in a long history of FLSA interpretations. Enacted in 1938 to address Depression-era labor conditions, [1]  the FLSA defines “employee” and “employer” in broad terms: [2]  an “employee” is “any individual employed by an employer,” [3]  an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” [4]  Further, to “employ” is “to suffer or permit to work.” [5]     These broad definitions, though circular, align with the Act's “remedial and humanitarian” purpose. [6]  The Supreme Court has noted that while the Act’s reach has limits, [7] its definitions cover many working relationships previously excluded from employer-employee consideration. [8] Although “work” is undefined, the Supreme Court in Tenn. Coal v. Muscoda  broadly interpreted it based on common understanding, thereby extending FLSA protections to nontraditional labor arrangements. [9] FLSA Precedent Courts interpreting the FLSA have sometimes consulted other statutes, like the NLRA and ERISA. [10]  In Walling v. Portland Terminal Co. , the Supreme Court rejected the use of these other sources [11] and excluded individuals working “solely for personal pleasure” from FLSA coverage. [12] However, qualifying the restriction with the term “solely” limited the applicability of the ruling. [13]     The same year, Rutherford Food Corp. v. McComb  established that employment relationships depend on the “circumstances of the whole activity,” [14] considering the “economic realities” rather than legal categories alone. [15] Courts have adopted this holistic approach, though no uniform formulation has been adopted, leaving judges significant discretion in interpreting economic realities. [16]   I n practice courts have applied varying, nonexclusive factor tests to give meaning to “economic realities.” Despite the Supreme Court’s guidance to avoid “isolated factors,” [17] courts interpreting the Act have historically honed in on facts and circumstances of each relationship that seemed situationally relevant leading to the development of various multi-factor tests based on the unique facts of each case. [18] Importantly, no factor in the economic realities test is ever dispositive, [19] as courts continuously emphasize the need to consider the totality of the circumstances . [20]     The College Sports Context Before Johnson , courts applied different factors to assess college athletes’ employment status. In Berger v. NCAA , the Seventh Circuit, following Rutherford , used a totality of the circumstances approach and held that college athletes were not employees under the FLSA, emphasizing the tradition of “amateurism” in college sports and the Department of Labor’s inaction on similar cases. [21]   Berger  relied on the NCAA’s policy defining amateurism, though this reliance might differ post- Alston . [22]  The Berger  concurrence suggested that scholarship athletes in revenue-generating sports might present a different “economic reality.” [23] In Dawson v. NCAA , the Ninth Circuit also found a college football player was not an FLSA employee. [24]  The District Court, citing Berger , argued that athletes’ participation was “voluntary” and rooted in amateur tradition. [25]   On appeal, the Ninth Circuit rejected revenue generation as a decisive factor and reaffirmed that non-payment was a cornerstone of amateur status. [26] Johnson ’s Facts Necessitate a Different Approach In Johnson v. NCAA , the Eastern District of Pennsylvania allowed student-athletes’ FLSA claims for unpaid wages to proceed, applying the “primary beneficiary” test from Glatt v. Fox Searchlight Pictures Inc. [27] This test assesses whether a worker benefits more from the relationship than the organization, which would negate an employment relationship under the FLSA. [28]  The court found a plausible joint employer relationship, choosing not to give the Department of Labor (DOL) field manuals the same weight as the Seventh Circuit did in Berger . [29] Defendants appealed, disputing the district court's use of the Glatt  test for student-athletes under the FLSA. [30]  The Third Circuit rejected the Glatt framework, instead adopting an “economic realities” test based on more general, established principles. [31]  The opinion noted that the Second Circuit presumed the activities of the intern in Glatt  are “work”—a presumption the court argued is not necessarily applicable to college sports, which often involve recreational or personal pursuits. [32]  Unlike the internships in Glatt , which provide specific educational benefits, the court reasoned that college sports develop general skills not directly related to educational advancement. [33] Therefore, the Third Circuit developed its own four-part “economic realities” test, considering if the alleged employee (a) performs services for another, (b) primarily benefits the other party, (c) operates under the other party's control, and (d) receives express or implied compensation. [34] This hybrid approach, influenced by Rutherford Food , balances economic realities with precedent, distinguishing athletes who play for recreation from those whose activities may fall under FLSA protections. The factors, drawn from established employment cases such as Tenn. Coal  and Tony & Susan Alamo Foundation v. Secretary of Labor , offer courts a familiar foundation for analysis. The Third Circuit held that while college athletes are unique, they should not be categorically barred from FLSA protections. [35] Although not specifically tailored to college sports, rooting the test in more generalized, established precedent gives the potential for more consistent results and interpretations going forward, as creating new tests for each unique factual circumstance tends to create more confusion than clarity.   Practical Considerations of the Johnson  Test   The Third Circuit’s decision in Johnson  diverges from the Berger and Dawson  rulings, which denied FLSA employment status to college athletes. While Johnson  stopped short of deciding that college athletes are employees, it left that possibility open, creating potential conflict across circuits. This inconsistency poses challenges for the NCAA, as it could have to manage competition between athletes of varying employment statuses. Such a split could lead the U.S. Supreme Court to address the issue, given its significant impact on many college athletes. A lack of nationwide agreement would introduce unequal protections and incentives, affecting college recruiting and potentially encouraging forum shopping based on jurisdictional standards. Applying the Johnson test universally could resolve this, but other challenges remain. The Third Circuit signaled their belief that the test must weed out those who “play” their sports from those whose sport is “work.” [36]  A future factfinder applying factor (b) could come to different conclusions for two teammates with different playing time, even if subject to the same control and team expectations. The “economic reality” for a non-scholarship, walk-on, FBS football player is likely very different from the full-tuition-comped star two spots ahead of them on the depth chart. While their expectations of in-kind benefits might differ, the expectations of performance would not. The economic reality in each situation may be different, but would a new evaluation of a player’s employment status be required mid-season if the walk-on secures the starting job? A system in which a player’s employment status could change over the course of a season while their job requirements remain the same seems inherently flawed. Female athletes might also face disadvantages if Johnson  became the standard. Even if factors like control and benefits remain consistent across genders, applying the “primary beneficiary” analysis may prejudice female athletes. Lower funding and revenue for women’s sports, historically rooted in systemic bias, could skew interpretations of who truly benefits from their participation simply because university revenues might be lower than their male equivalents. [37] Even if a female athlete was granted employee status, there could be issues with other legal requirements necessitating equal pay protections amongst genders. [38]  A uniform application of Johnson  may yield varied rulings regarding benefits in women’s sports, especially where profitability and fan engagement weigh heavily. Further, factor (b) likely creates more issues than it would solve. Although it moves away from the “solely” in the employer’s interest language from Walling , judging who receives the “primary” benefit is equally confusing and seems rooted in the same primary beneficiary analysis used by Glatt , which was rejected. If the Johnson test is uniformly applied to questions of college athlete employment status, there will inevitably be issues of uneven impact for athletes on the same teams, at the same schools, and within the same conference. Conferences or Divisions that do not provide athletic scholarships could see their athletes miss out on FLSA protections under factor (c) due to the absence of in-kind benefits. This shift could alter how schools structure their athletic programs and intensify administrative challenges for compliance offices. The increased costs associated with paying athletes would put financial strain on athletic departments, potentially leading to significant restructuring or cuts in sports programs. A Market-Based Approach Could Enhance the Johnson  Test The Johnson  factors could be improved by incorporating additional considerations to bring clarity and consistency to future cases. [39]  An enhanced test might include an “open market approach,” estimating an athlete’s demand in a hypothetical open market for their services, thereby providing a measurable value they contribute to a university. This would add repeatability and clarity for judges applying Johnson in the future. For instance, while a collegiate fencer may not generate significant gate receipts, they may provide intangible benefits like prestige or marketability that hold quantifiable economic value. Framing the test in monetary terms offers a more workable standard than the broad notion of “benefits.” If the value produced reaches a significant threshold, this factor would weigh in favor of granting employee status. However, revenue distinctions alone fail to capture athletes’ labor inputs accurately, even if courts view their efforts as “play.” Therefore, caution is necessary when considering Justice Hamilton’s note from Berger . [40]  The financial state of a business unit as a whole should not undermine the labor of its employees; a startup coder is clearly working, even if the company hemorrhages money and the worker is compensated in deferred stock options rather than cash. [41]   The FLSA protects both traditional and historically overlooked employment contexts and does not necessarily extend to all relationships involving control or benefit. This could lead some to argue that the test stretches the FLSA beyond its scope by treating students, primarily academic participants, as workers because of institutional control in certain areas, such as athletics. This could risk opening claims from other student groups (e.g., musicians, debaters) who also serve their universities but don’t traditionally meet the definition of “employee.” On balance, the Johnson  test may be preferable to many alternatives. Rooted in traditional precedent, the factors will likely be familiar to judges handling future cases, promoting more consistent outcomes than a set of highly specific factors tied to college athletics, as seen with the Glatt test. While it may lead to some inconsistencies and could under-include certain athletes, it strikes a balance between established precedent and the unique college athlete-university relationship.   Conclusion   The Third Circuit in Johnson acknowledges that flaws and inequities exist in college sports today. In crafting its test for college athlete FLSA employee claims, they diligently draw from a long line of fact-specific precedent interpreting the vague and broad Act at hand. In doing so, they rightfully address the factual distinctions of college athletes compared to other potentially similar work-like conditions. While the factor test in Johnson  is useful and opts for simplicity, going back to more traditional roots, additional factors could be added to more accurately capture the potential work done by college athletes. Caleb Clifford is the second-place winner of the 2024 Conduct Detrimental Sports Law Writing Competition. He is also a graduate of USC Gould School of Law for the class of 2024.   Sources: [1]   See The Fair Labor Standards Act of 1938, as amended 29 U.S.C. 201, et seq. (The Act’s purpose is “to provide for the establishment of fair labor standards in employments in and affecting interstate commerce, and for other purposes.”);  see also   Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578, 62 S. Ct. 1216, (1942) (quoting 81 Cong. Rec. 4983 (1937) (“ Accordingly, it gives specific, non-waivable minimum protections to individuals to ensure that each covered employee receives "[a] fair day's pay for a fair day's work.”). [2]   See  Johnson v. NCAA, 108 F.4th 163, 176 (3d Cir. 2024) (quoting United States v. Rosenwasser, 323 U.S. 360, 363 n.3, 65 S. Ct. 295 (1945) (“Accordingly, “the term ‘employee’ means any individual employed by an employer,” 29 U.S.C. § 203(e)(1), a definition that has been described as “the broadest . . . that has ever been included in any one act.”). [3]   29 U.S.C. § 203(e)(1). [4]   Id.  at § 203(d). [5]   Id.  at § 203(g). [6]   See   Tenn. C. v. Muscoda, 321 U.S. 590, 597, 64 S. Ct. 698, 703 (1944); see also  Martin v. Selker Bros., 949 F.2d 1286, 1293 (3d Cir. 1991). [7]   See Walling v. Portland Terminal Co., 330 U.S. 148, 152, 67 S. Ct. 639, 641 (1947) (“The definition ‘suffer or permit to work’ was obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another. Otherwise, all students would be employees of the school or college they attended, and as such entitled to receive minimum wages.”). [8]   Id. at 330 U.S. 148, 150 (“comprehensive enough to require its application to many persons and working relationships which, prior to this Act, were not deemed to fall within an employer-employee category.”) ; see  Rosenwasser, 323 U.S. 360 (We have said that the Act included those who are compensated on a piece rate basis); see also  Williams v. Jacksonville Terminal Co., 315 U.S. 386, 391.  ( We have accepted a stipulation that station "redcaps" were railroad employees.). [9]   Tenn. C. 321 U.S. 590, 598 (“we cannot assume that Congress here was referring to work or employment other than as those words are commonly used -- as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.”). [10]   See   Johnson, 108 F.4th 163, 179. [11]   See Walling v. Portland Terminal Co., 330 U.S. 148, 152, 67 S. Ct. 639, 641 (1947)  (“ But in determining who are “employees” under the Act, common law employee categories or employer-employee classifications under other statutes are not of controlling significance.”); see also  N. L.  R. B. v. Hearst Publications, 322 U.S. 111, 128-129. [12]   Tony & Susan Alamo Found., 471 U.S. at 295 (quoting Walling ,  330 U.S. 148, 152). [13]  Merriam Webster defines “Solely” to mean “ to the exclusion of all else.” “Solely.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/solely . Accessed 4 Nov. 2024. [14]  Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S. Ct. 1473, 1477 (1947). [15]   Id. [16]   See  Geoffrey J. Rosenthal, College Play and the FLSA: Why Student-Athletes Should Be Classified as “Employees” Under the Fair Labor Standards Act , 35 Hofstra Lab. & Emp. L.J. 141, 141–42 (2017) (citing Marshall v. Regis Educ. Corp. , 666 F.2d 1324, 1328 (10th Cir. 1981); Mendel v. City of Gibraltar , 727 F.3d 565, 569, 571 (6th Cir. 2013)). [17]  Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947). [18]   See  Johnson v. NCAA, 108 F.4th 163, 177 (3d Cir. 2024); see also   Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 141-43 (2d Cir. 2008). [19]   See  Johnson v. NCAA, 108 F.4th 163, 177 (3d Cir. 2024) (“ Ultimately, the touchstone remains whether the cumulative circumstances of the relationship between the athlete and college or NCAA reveal an economic reality that is that of an employee-employer.”). [20]   Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983) (citing Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 936, 6 L. Ed. 2d 100 (1961)). [21]   Berger v. NCAA, 843 F.3d 285, 293 (7th Cir. 2016). [22]  Much like the seemingly bizarre interpretations of baseball as local entertainment rather than a business activity in Fed. Baseball Club, Inc. v. Nat'l League of Prof'l Baseball Clubs, 259 U.S. 200, 207, 42 S. Ct. 465, 465 (1922), creating the oft criticized “baseball exemption” to antitrust, courts and judges today show a similar hesitation to be the one to end the traditions of college sports that are so pervasive in the nation. [23]   Berger v. NCAA, 843 F.3d 285, 294 (7th Cir. 2016). [24]   Dawson v. NCAA/PAC-12 Conference, 932 F.3d 905 (9th Cir. 2019). [25]   Dawson v. NCAA, 250 F. Supp. 3d 401, 405 (N.D. Cal. 2017). [26]   Dawson v. NCAA/PAC-12 Conference, 932 F.3d 905, 910 (9th Cir. 2019). [27]  Johnson v. NCAA, 556 F. Supp. 3d 491, 509 (E.D. Pa. 2021). [28]  Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536-37 (2d Cir. 2015). [29]  Johnson v. NCAA, 556 F. Supp. 3d 491, 506 (E.D. Pa. 2021). [30]   Id. [31]   Id.   [32]   Id.   [33]   Id.   [34]  Johnson v. NCAA, 108 F.4th 163, 177 (3d Cir. 2024). [35]   Id. [36]   Id.   [37]  Jeffrey T. Ramsey, Big Men on Campus: Administrative Response to Title IX and the Development of Women 's Sports in the Big Ten Conference, 1972-1982, at 105 (2014) (P.h.D. Dissertation, Marquette University), https://epublications.marquette.edu/cgi/viewcontent.cgi?article=1356&context=dissertations_mu . [38]  EEOC, Equal Pay/Compensation Discrimination , https://www.eeoc.gov/equal-paycompensation-discrimination . [39]   Johnson v. NCAA, 108 F.4th 163, 184 (3d Cir. 2024) (Porter, J. concurring) (“ The question presented   necessarily invites finding, weighing, and balancing a multitude of as-yet undeveloped facts that will vary widely across many thousands of student-athletes, teams, sports, colleges, and universities.”). [40]   Id.  at 182 (citing Berger, 843 F.3d at 294 (Hamilton, J., concurring) (“In sum, for the purposes of the FLSA, we will not use a “frayed tradition” of amateurism with such dubious history to define the economic reality of athletes’ relationships to their schools. Instead, we believe that the amateurism that Judge Hamilton calls into question in his “note of caution” highlights the need for an economic realities framework that distinguishes college athletes who “play” their sports for predominantly recreational or noncommercial reasons from those whose play crosses the legal line into work protected by the FLSA.”). [41]  The coder would have an expectation of compensation that potentially differs from that of a college athlete even though the business is losing money, but the coder’s line of business has not been subject to artificial wage suppression since its inception as is the case in college sports.

One of the biggest stories in sports media over the past few years has been the bankruptcy proceedings of Diamond Sports Group (now known as Main Street Sports Group). Entering the 2023 season, Diamond carried the broadcasts for 14 of the 30 MLB clubs in addition to many NBA and NHL franchises. During that season, Diamond lost a bankruptcy court case against MLB in which it argued that the rights fees it owed clubs should’ve been reduced due to changes in market dynamics in the era of cord-cutting and the decline of cable television. It had already missed payments to certain teams earlier that season, so the company was quickly put in a position to decide whether to keep or cut their existing contracts. The first two teams Diamond cut in 2023 were the San Diego Padres and the Arizona Diamondbacks.   While Diamond broadcasted games for 12 MLB clubs for the 2024 season on its Bally Sports channels, it announced last October that it planned to void the contracts for all its remaining teams with the exception a standalone rights deal with the Atlanta Braves. Three of its contracts were already set to expire at the conclusion of the 2024 season, but eight teams were essentially freed from their legacy in-market rights deals with Diamond Sports.   At the time of the announcement, some believed that outside of its deal with the Braves, Diamond was essentially exiting the baseball broadcasting game. However, in somewhat of an unexpected twist, the company emerged from bankruptcy, formally changed its name to Main Street Sports Group, and negotiated new deals with many of the aforementioned clubs it cut. Some teams including the Reds and Brewers even made previous arrangements with MLB to produce their broadcasts, but eventually reneged to return to Main Street. In all nine teams will appear on the rebranded FanDuel Sports Network in 2025. One team formerly under the Diamond Sports umbrella that went in another direction was the Texas Rangers. The Rangers could have followed serve with the aforementioned clubs and returned to Main Street. They also could’ve partnered with MLB like the Arizona Diamondbacks, San Diego Padres, and Colorado Rockies did. But the Rangers are opted for a riskier and inherently more difficult path — a network that they will manage from end to end, from broadcast to advertising to distribution. Last week, club officials unveiled the launch of Rangers Sports Media & Entertainment Company. The company will include the new Rangers Sports Network and the existing REV Entertainment that is the team’s official sports and entertainment partner and official booking agent for events at its current (Globe Life Field) and former (Choctaw Stadium) stadiums.  Before the announcement, the Rangers entered into a multiyear agreement with A Parent Media Company (APMC) to  stream Rangers regional games  directly to consumers on the Victory+ service for the 2025 season. The team followed in the footsteps of their local hockey club, the Dallas Stars, in transitioning from Main Street Sports portfolio to the Victory+ streaming platform. As distinguished from Stars games, which are exclusively on Victory+ within the Dallas-Fort Worth market, the Rangers said at the time that the Victory+ deal was only one way for its fans to consume games for the 2025 season.   That’s where Rangers Sports Network comes in. While the team’s agreement with APMC will allow cord-cutters and streamers to watch games on the Victory+ platform, Rangers Sports Network will be available for fans who still subscribe to cable and satellite TV providers. The team announced that the network will be found on Spectrum, DirecTV, DirecTV Stream, and AT&T U-Verse. So in a sense, whether you are a cord cutter or a loyal cable/satellite subscriber in the DFW market, you have access to Rangers baseball in 2025. The club is also planning to provide local fans with free over-the-air games for Friday home games on CW33.   This comes as great news for Rangers fans, who have experienced several seasons of access issues. Bally Sports Southwest was not available through some cable providers and many popular streaming platforms in the Rangers TV territory. The club’s majority owner Ray Davis said as much last week. “One of the main goals when seeking solutions for Rangers television broadcasts was to give fans more access to our games.” “We determined that the best path toward providing our fans with more options is to handle many of the broadcast obligations in-house.” While giving fans multiple avenues to watch games is beneficial to achieving the goal of expanding the team’s reach, there are some financial considerations that come into play.  The Rangers had been getting approximately $110 million in annual rights fees over their previous TV deal with Diamond Sports, although it’s believed they took a slight hair cut in 2024 amid Diamond's bankruptcy proceedings. While it’s unlikely the club would have received as much under a renegotiated contract, there is definitely some risk in going out on their own. For a team that sees itself as a contender and currently carries a payroll around $220 million, maximizing TV revenues is an obvious priority for the team's business and baseball operations departments.   In an interview with Sports Business Journal, Neil Leibman, a former club executive who will manage Rangers Sports Network, said “We know we can broadcast the games.” “Can we generate the revenue to offset what we would have made [elsewhere]? That’s up to our execution, and I think we’re in better hands managing our own risk.” Leibman didn’t disclose to SBJ how much TV revenue he believes the club will generate its first year, but he said his belief was that it could exceed the $90 million rights fee it received from Diamond Sports last season.   In an era where regional sports networks seem to be on the decline, the Rangers are embracing the creation of their own. It will be fascinating to see how this all plays out. If Rangers Sports Network succeeds, it could prompt other clubs to follow in the Rangers footsteps in the future. Regardless, you have to give the club credit for bucking the trend and taking a calculated risk in the changing media landscape.   Brendan Bell is a 2L at SMU Dedman School of Law. He can be followed on Twitter (X) @_bbell5

Noushin Faraji, a former hair stylist at Fox, has sued Fox Sports, Fox Corporation, Skip Bayless—the former host of Skip and Shannon: Undisputed —and Charlie Dixon —a network executive—in California Superior Court in Los Angeles this month. The lawsuit brings claims for sexual battery, a hostile work environment, failure to prevent harassment, negligent supervision, hiring and retention, retaliation, and wrongful termination. While the lawsuit also seeks class certification for alleged failure to pay minimum wage and overtime, the harassment claims have garnered national attention. Alleged Harassment The crux of Faraji’s complaint alleges that “Fox’s failure to prevent harassment perpetuated a misogynistic, racist, and ableist workplace where executives and talent were allowed to physically and verbally abuse workers with impunity.” Specifically, Faraji alleges that since 2017, Bayless made repeated and unwanted advances toward her. These instances included kisses on the cheek, lingering hugs, and comments that Bayless could change Faraji’s life if she had sex with him. In 2021, Bayless allegedly offered Faraji $1.5 million to have sex with him and then threatened her job when she refused. Faraji also alleges that FS1 executive vice president of content, Charlie Dixon, rubbed her body and grabbed her buttocks at a party in 2017. According to the complaint, Dixon was one of the first to be hired by former Fox Sports president, Jami Horowitz, who was terminated from Fox due to reports of sexual harassment. The complaint alleges that Faraji felt pressure to be professional and kind to Bayless and other Fox Sports talent. Alleged Retaliation According to the complaint , Faraji reported these incidents to Fox Sports’ Human Resources but claims these complaints were ignored. Faraji states that when she was fired in 2024 she remained quiet about the harassment she was subjected to because she believed she could be in danger. Faraji alleges in the complaint that Fox fired her at Dixon’s direction as retaliation for disclosing information about his sexual relationships with network employees. The Bigger Picture for Employers The lawsuit has just begun and whether Faraji’s allegations are true remains to be determined. Nonetheless, Faraji’s lawsuit serves as a valuable reminder of the importance of maintaining a safe and healthy workplace. It is critical to prioritize both preventing sexual harassment as well as providing a space in which employees feel validated and protected. This is more than a moral obligation; it is a legal obligation as well. Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment. Effective harassment prevention efforts and workplace culture in which harassment is not tolerated must start with and involve the highest level of management of the company. Here are five essential steps every employer should undertake to foster a healthy work environment and avoid litigation, and the salacious headlines Fox and Bayless are now facing. 1. Implement a sound anti-harassment policy with multiple avenues to lodge a complaint Draft comprehensive anti-harassment policies. These should define harassment, provide examples of unacceptable behavior, and specify the consequences for violations. Ensure that employees are familiar with these policies during onboarding and through regular training. Create multiple, confidential reporting mechanisms for employees to raise concerns without fear of retaliation. Options might include anonymous hotlines, third-party reporting systems, or designated management and HR representatives. Providing multiple pathways for employees to report misconduct is critical and broadens the likelihood that an employee will be able to feel comfortable coming forward with information. Make sure your business is periodically reviewing workplace dynamics, employee feedback, and policy enforcement to identify and address potential vulnerabilities before they escalate. Just because there have been no reported instances of misconduct, does not mean they will not happen. 2. Educate management and employees about the policy Having a sound policy is not enough. Provide mandatory training on preventing sexual harassment, including recognizing, reporting, and addressing inappropriate conduct. Focus on empowering bystanders to intervene and support victims. Even more importantly, as shown in the Faraji lawsuit, hold executives accountable. Train managers and supervisors to model respectful behavior, intervene in inappropriate situations, and support employees who come forward with concerns. 3. Take complaints seriously and thoroughly investigate allegations When complaints arise, respond promptly with a thorough and unbiased investigation. Employers should engage independent investigators if necessary to maintain objectivity and help employees feel comfortable with the process. 4. Take corrective action if violations occur Apply consequences consistently, regardless of the accused individual’s seniority or influence within the organization. This demonstrates a commitment to maintaining a fair and respectful workplace and shows employees that their concerns will be addressed seriously, even if the concerns are based on a superior’s conduct. 5. Protect employees from retaliation Establish a clear anti-retaliation policy that outlines employees’ rights and appropriately discipline any employees who are accused of or threaten retaliation. Inform employees that retaliation for claims of sexual harassment or discrimination is unlawful and strictly adhere to this policy. Retaliation is the most frequently alleged basis of discrimination before the EEOC and actions beyond terminating employment can amount to retaliation such as demotions or transfers. Conclusion While these steps may seem simplistic, they are essential to prevent the types of claims alleged in Faraji’s complaint. Employers should devote sufficient resources to harassment prevention efforts and where harassment is found to have occurred, appropriate discipline proportionate to the conduct should be issued. Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA, and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree and B.S.B.A from The Ohio State University. You can read his blog, SportsFansGuide2HR , and connect with him via LinkedIn and Twitter @kwinklerbfvlaw. Emma Sammons is an associate at Berman Fink Van Horn. Emma counsels clients through diverse business challenges and disputes, including contract disputes, labor and employment, and noncompete matters. She obtained her B.A.s in International Studies and Spanish Language and Literature at Fordham University and her J.D., with honors, from Emory University.

Introduction As aptly described in the title of John Talty and Armen Keteyian’s 2024 book, college athletics has entered an “era of chaos:” [1]   We are living in the Wild West of college sports. Name, Image and Likeness (NIL) endorsements, the transfer portal, collectives, conference realignment, the powerful influence of media companies have all rendered the notion of amateur athletics a quaint relic of the past, replaced by a Brave New World where money and self-interest rule. [2]   Indeed, during the latter half of 2024, the “Wild West” was not just a new host region for Atlantic Coast Conference games. In July, the National Collegiate Athletic Association (NCAA)—already staggering from the House v. NCAA [3] settlement—received a summons for a final shootout by way of  Johnson v. NCAA , 108 F.4th 163 (3d Cir. 2024).    With the notion of “amateurism” in college athletics posted on “WANTED” billboards since the U.S. Supreme Court’s landmark decision in NCAA v. Alston , 594 U.S. 69 (2021) ( see, esp., Kavanaugh, J., concurring at 110), the Third Circuit’s interlocutory decision opening the door for collegiate athletes to be considered “employees” for purposes of the Fair Labor Standards Act (FLSA) was unsurprising in terms of the result.   However, the Johnson four-factor test is surprisingly inadequate in accounting for “economic realities” in the Brave New World of college athletics—especially considering the opinion’s own critique of existing multifactor tests. This characterization comes from the authors’ firsthand experience, one of us having played Division I volleyball [4] .   The grueling day-to-day life for a Division I athlete now requires up to 22,226 miles of air travel in a single season [5] , a figure that has peaked in 2024 but has defined the “services” performed by students for college sports teams for decades. Scholarships, NIL, and the ability to enter the “transfer portal” provide a patchwork of compensation, but no legislative or judicial assessment has captured the truth. College athletes “go pro” the moment they step on campus—a paradigm shift that requires a new sheriff in town.    Analysis The FLSA requires employers to pay all employees a specified minimum wage, and overtime of time and one-half for hours worked in excess of forty hours per week. The definitions at 29 U.S.C. § 203(e)(1) (“employee” is an “individual employed by an employer”) and 29 U.S.C. §203(g) (“employ” is “to suffer or permit to work”) are notoriously unhelpful in gray areas, but administrative agencies such as the Department of Labor offer guideposts [6] often cited by courts tasked with weighing the fact-intensive question of whether a given plaintiff qualifies as an “employee” for FLSA purposes. As a result, the decision in a FLSA categorization case will necessarily depend upon a fabric of statute, administrative guidance, case law precedent, and public policy concerns.   Economic Realities and Multifactor Tests U.S. Supreme Court decisions regarding the “economic realities” evaluation that is outcome-determinative for the FLSA “employee” categorization center on three factors – (1) expectation of compensation, as set forth in Walling v. Portland Terminal , 330 U.S. 148, 152 (1947); (2) power to hire and fire, or alternatively, to be hired and fired – Goldberg v. Whitaker House Cooperative, Inc ., 366 U.S. 28, 33 (1961), and (3) evidence that an arrangement was “conceived or carried out” to evade the law.  Portland Terminal at 153.    The Johnson court held that an “economic realities” test is required to determine the potential employment status of college athletes, which analysis hinges upon four factors: 1.      Whether the athletes perform services for another party; 2.      Whether the athletes’ services are necessarily and primarily for the other party’s benefit; 3.      Whether the athletes are under the other party’s control or right of control; and 4.      Whether the athletes perform their services in return for express or implied compensation or similar benefits. Johnson v. NCAA , 108 F.4th 163, 180 (3d Cir. 2024)   As the foregoing illustrates, any court assigned with fact-finding on the question of “employee” under the FLSA has a heavy load, and historically speaking, this burden increased in the NCAA context owing to a century of logical fallacy. This lineage was expressly considered by the Johnson court when it rejected existing tests and creating its own:   In a limited sense, we agree that existing multifactor tests are inadequate when applied to the college athlete… such tests either improperly assume that the alleged employee engages in compensable work or account for factors not relevant to college athletics. Johnson  at 182.   Given this statement, and considering the interlocutory nature of the Johnson decision, it will be more fruitful to assess the underlying logic for the test itself rather than applying missing “facts” to each prong.    The Ghost of Amateurism The lingering sentiment that the NCAA’s raison d’être is to maintain “a clear line of demarcation between college athletics and professional sports,” as set forth in NCAA v. Board of Regents of University of Oklahoma , 468 U.S. 85, 122 (1984), was fully and finally exhumed by the unanimous Supreme Court in Alston .  594 U.S. 69 (2021) [7] .    Standing on the shoulders of Alston , and in stark contrast to the glorification of the amateur status of its constituents’ athletes, contemporary thought suggests that the reduction or cancellation of financial aid as dictated by NCAA policy and procedure by those accepting money for playing in an athletic contest is symptomatic of the NCAA’s “fossilized view of college athletics,” and that the NCAA’s misclassification of college athletes as “amateurs” constitutes systematic wage theft [8] .    Incorporating the historical argument set forth in the referenced briefs, it is possible that the next step is for the U.S. Supreme Court to resolve the forthcoming circuit split on the FLSA issue by holding that the “student-athlete” arrangement was “conceived or carried out” to evade the law.  Portland Terminal , 330 U.S. at 153.    As the authors know, college athletes are the prime movers for a multi-billion dollar industry. Though they face the risk of physical, mental and emotional injuries that are considered occupational hazards for professional athletes, undergraduates’ efforts to unionize and monetize—though factually and rationally sound—have been categorically denied until the past decade.  This change is long overdue.   Evaluating the Third Circuit’s Performance As set forth above, the task cut out for the Third Circuit in Johnson— where a group of then-current and former intercollegiate athletes led by Villanova football player Trey Johnson sued their colleges as well as the NCAA for categorization as joint employees of the NCAA and their institutions—included not only the weighty prospect of making an interlocutory call on the certified question, but also to do so in a way that captured the zeitgeist.   Like the narrator in the classic Country & Western tune “El Paso,” the authors find it helpful to imagine the Third Circuit judges on a hill overlooking their goal— i.e. , putting an end to college athlete wage theft—but facing obstacles on all sides [9] . The Court’s predecessors—many of whom had the same outcome in mind—died on this hill. For example, the Seventh Circuit found it necessary to cite to precedent regarding involuntary servitude of incarcerated individuals; similarly, the Northern District of California found the Berger logic persuasive. [10]     The Third Circuit seized upon an alternate route in Johnson . The Third Circuit, unlike its sister courts, deftly describes the FLSA potential “employee” spectrum from involuntary servant to independent contractor, showing that college athletes are neither prisoners nor pillow purchasers. [11] Moreover, they are not merely extracurricular participants.  Berger v. NCAA , (7th Cir. 2016) (Hamilton, J., concurring) (“[a broad theory including] not only any college athlete in any sport and any NCAA division, but also college musicians, actors, journalists, and debaters… is mistaken”).  Paying homage to the Berger concurrence and to Alston , the Johnson court refuses to sing the “same old song” of “amateurism:”   [T[he educational and vocational benefits of college athletics cited by [the NCAA] as alternative forms of remuneration (increased discipline, a stronger work ethic, improved strategic thinking, time management, leadership, and goal setting skills, and a greater ability to work collaboratively) are all exactly the kinds of skills one would typically acquire in a work environment.  Johnson at 180.   Here we see the Third Circuit riding off into the sunset. Guns in holsters, the task has been achieved—the NCAA is not above the law.   Epilogue Attending college in Music City, it is difficult to escape a time-tested lesson: all great country songs are based on “three chords and the truth”.  Put another way—timeless descriptions of the human experience fit universal truths into a familiar structure.   Devotees of the “frayed tradition” of amateurism in college sports played the same chords over and again, but eventually faded from the limelight.   The Third Circuit in Johnson takes the new chord structure and shows how the truth might fit in, somewhere down the line. This limitation is understandable, given the procedural posture, but cries out for NCAA athletes to continue to weigh in on these issues.   The hidden truth is the contemporary reality for many college athletes, who often face competition for their jobs from players currently at rival schools, handle online threats from degenerate gamblers and solicitations for NIL endorsements from unsavory characters, all while taking weekly flights around the country, nursing injuries that sometimes result in – not one, but two – shoulder surgeries, and attempting to string together passing grades in the classroom.    As described in Ed O’Bannon’s own book, Court Justice , as well as in The Price ,   the remedy sought by the class of athletes whose NIL rights were infringed upon by the “NCAA” video games required a star turn—which, in this case, O’Bannon was happy to provide after much soul-searching—in order to put a face to the quest [12] . In the unionization battle, this “face” was Kain Colter, who testified in front of the National Labor Relations Board about the August training schedules (waking up at 8 am and finishing practice at 10 pm) for Northwestern football players [13] .   Fast-forward to that fateful season of late summer 2024, when sports lovers worldwide who downloaded EA Sports College Football 25  could rest assured that 11,000 college football players had the chance to opt in for NIL payment [14] .  All thanks to O’Bannon, who chose to put himself in the right place at the right time.   The spotlight is on and the stage is set for the next star. Who will it be?   Jonathan Safron, Associate Attorney Jonathan believes his job is to help put issues his clients face in the rear-view mirror.  His sports law experience includes negotiating settlements during baseball salary arbitration from the player side; building on his experience with the firm’s Construction Service Group, he also advises as to contracting and municipal partnerships for sports facility / mixed use development construction projects.    Olivia LaPorta, Associate Attorney As a former Division 1 college athlete, Olivia is known as a both a team player and a tough competitor. These are the traits that help her achieve favorable results for clients.  In addition to advising on NIL contracts, Olivia is a member of the firm’s Transportation & Logistics Service Group.    Opinions expressed in the foregoing article are our own opinions and do not reflect the views of our employer.  We are not spokespeople for our employer, and our employer does not prevent the legitimate exercise of our right to express personal opinions under the National Labor Relations Act.   Sources: [1] The Price: What It Takes to Win in College Football’s Era of Chaos (2024). [2] Available at https://www.amazon.com/Price-Takes-College-Footballs-Chaos/dp/0063345250 (Amazon summary). [3] House v. NCAA , N.D. Cal. 4:20-cv-03919; settlement of House and related matters approved in principle in May 2024, whereby Judge Claudia Wilken cleared the way for $2.78 billion in retroactive damage payments. [4] To a lesser extent of applicability, the other author worked as an athletics marketing intern as an undergrad. [5] Being a College Athlete Now Means Constant Travel and Missed Classes , New York Times, October 30, 2024 (Witz, B.) available at   https://www.nytimes.com/2024/10/30/us/college-football-conference-realignment.html [6] DOL, Wage & Hour Div., Fact Sheet #71, Internship Programs Under the Fair Labor Standards Act (April 2010), available at http://www.dol.gov/whd/regs/compliance/whdfs71.pdf [7] See also   O’Bannon v. NCAA , 802 F.3d 1049, 1063 (9th Cir. 2015) (concluding that the  Board of Regents  discussion of amateurism was dicta). [8] Brief of Professor Michael H. LeRoy as Amicus Curaie  in Support of Plaintiffs-Appellees , Case 22-1223 [40] p. 3. [9] “ Off to my right I see five mounted cowboys / Off to my left ride a dozen or more ” Marty Robbins, “El Paso” (1960) [10] Dawson v. NCAA , 932 F.3d 905, 909 (9th Cir. 2019) (analyzing Berger v. Nat’l Collegiate Athletic Ass’n , (7th Cir. 2016) [11] See Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015), amended and superseded by 811 F.3d 528 (2d Cir. 2016) , which multifactor test regarding interns on the film Black Swan  was rejected by the Johnson court, and which opinion describes a highly specific unpaid intern task assigned by director Darren Aronofsky. [12] Excerpt available at   https://www.nytimes.com/athletic/232846/2018/02/09/book-excerpt-in-court-battle-with-ncaa-ed-obannon-took-the-stand-hoping-to-send-a-message/ [13] Links to Daily Northwestern coverage of Northwestern players union legal hearings available at https://dailynorthwestern.com/sports/northwestern-nlrb-union-effort/ [14] Available at https://www.espn.com/college-football/story/_/id/39574788/players-opting-ea-sports-college-football-25-get-600

Introduction On July 11, 2024,   in Johnson v. NCAA , the U.S. Court of Appeals for the Third Circuit waded into the complex and shifting landscape of collegiate student-athlete compensation. The court’s opinion provided guidance on one of the most promising avenues for such compensation: that student-athletes could be classified as employees under the Fair Labor Standards Act (FLSA)   and thus be entitled to minimum wage and overtime pay. [1]   In Johnson , Plaintiff Division I athletes asserted claims against the NCAA for alleged failure to pay minimum wage. Defendants moved to dismiss, arguing that “athletes cannot be employees as a matter of law and therefore had failed to state a claim.” [2] While the opinion, which denied the motion to dismiss, steered clear of answering this pivotal classification question, it constructed a multi-factor test to evaluate employee status for student-athletes. Under the test, student-athletes could be classified as employees under the FLSA when they (a) perform services for another party, (b) necessarily and primarily for the other party’s benefit, (c) under that party’s control or right of control, and (d) in return for express or implied compensation or in-kind benefits. [3]   The Merits of the New Framework The Third Circuit’s novel test could be further refined, but aptly does away with the presumption undergirding alternative existing tests: that the alleged employee is indeed performing “work.” From the Third Circuit’s perspective, student-athletes are so uniquely positioned that no existing framework was appropriate for determining employee status. Assessing the Glatt  test, commonly used in academic contexts to determine employment status for interns, the court found it ill-suited to analyze student-athletes, whose participation in varsity sports is independent of any academic curriculum. [4] Furthermore, the court dismissed the Glatt test because it assumes that those to which it is applied are performing “work,” whereas for student-athletes, such a determination had not yet been made. [5]   Other common tests used to evaluate employee status, such as California’s ABC Test, the Department of Labor’s economic realities test, or the common law agency test, suffer from this same fatal flaw. [6] Thus, the Court’s decision was logical and some iteration of this test, free of the assumptions burdening alternatives, was likely unavoidable.  Second, the test is helpful because it shifts the focus away from the red herring argument that employment status might be different for revenue vs. non-revenue generating sports, and instead, presents factors that more suitably allow courts to view student-athletes as akin to work-study students. To be clear, “revenue generation” has never been a relevant factor in determining employee status and has been rejected by several courts. [7] Finally, from an outcome-oriented, pro-athlete perspective, the test is a step forward because under it, many student-athletes will likely be deemed employees. Applying the first and second factors, student-athletes perform their services to the primary benefit of their universities and the NCAA. [8]  Student-athletes’ services include providing athletic competition to the student-body, faithful alumni, and other fans across the globe. Because the demands of varsity sports make it more challenging for athletes to be students first, colleges and the NCAA are arguably the primary beneficiaries of this relationship. Furthermore, the marketing and investment in varsity sports are distinctly central to any college’s recruiting efforts, alumni relations, and overall brand. Applying the third factor, student-athletes are subject to the NCAA’s strict bylaws, follow rigid schedules set by coaches that limit their ability to pursue certain classes or extracurriculars, often practice 40 hours per week, and in many cases even complete timesheets. [9]  Therefore, they are clearly under the control of the NCAA and colleges. Applying the final factor, many student-athletes participate in their sports in return for express compensation through scholarships. Walk-on student-athletes (along with scholarship student-athletes) also receive implied or in kind-benefits such as meals, travel accommodations, and access to facilities, gear, equipment, dietitians, and medical staff. Under this new framework, Division I student-athletes appear to convincingly satisfy the factors. While a strong starting point, this test must be further developed in subsequent cases for the reasons discussed below. Sharpening the Third Circuit’s Multifactor Test             The Third Circuit’s use of “and” but nor “or” suggests that all four factors must be satisfied to have a finding of employee status. Interestingly, however, the court immediately proceeded to state that “[u]ltimately, the touchstone remains whether the cumulative circumstances of the relationship between the athlete and college or NCAA reveal an economic reality that is that of an employee employer.” [10] Does this statement suggest that no factor is in fact determinative, but should rather be seen as guideposts used to uncover the reality of the economic relationship at play? Or does the court’s use of “and” signify that each of the four factors must all be definitively met for there to be a finding of employee status?  The court’s intent here is unclear and must be further refined in subsequent cases, as this ambiguity could prompt the NCAA to implement workarounds that deflate   the test’s purpose. A Circumventable Framework?   The Third Circuit found the Glatt test ill-equipped to address the unique circumstances of student-athletes, whose participation in sports, unlike unpaid interns, is unrelated to academic benefit. But, in an effort to avoid a finding of employee status, might the NCAA circumvent the framework by simply providing academic credit for activities related to their participation in varsity sports? An obvious example would be offering physical education credit per semester of participation, [11]  but this universe of academic credit could easily be expanded. Now that student-athletes are free to profit off their name, image, and likeness (NIL), it’s not difficult to imagine a world where in lieu of a lifting session, student-athletes attend a class for credit that could cover pivotal topics such as marketing, social media, branding, financial literacy, or basic contract and negotiation principles. [12]   If academic credit were to become more integral to a student-athlete’s collegiate experience, would a court determine that student-athletes are now the primary beneficiary of the relationship? With athletic participation now hypothetically tied to academic curriculum, would courts reason they must revert to the Glatt test? This could muddle the situation, because even if student-athletes were to receive some academic credit, the remaining factors of the Third Circuit’s test clearly point in favor of a finding of employee status. Would receiving academic credit negate the salient reality that many Division I scholarship students are still economically dependent on their colleges, who, in conjunction with the NCAA, exercise significant control over these student-athlete’s lives? This again highlights the need to fine-tune the intent behind the new framework, and whether the focus should be on satisfying the factors or the economic reality of the employee-employer relationship more generally. Walk–Ons and Ivy League Athletes If the touchstone of the Third Circuit’s analysis is truly that of determining the economic reality between employee and employer, then the potential for employee status of walk-ons or Ivy League athletes feels less persuasive. The Department of Labor states that the goal of its economic realities test is to decide if the worker is economically dependent on the employer for work. For many Division I scholarship athletes, if they were to quit the team and correspondingly have their express compensation (i.e., scholarship) revoked, many students would have no choice but to drop out. While non-scholarship walk-ons and Ivy Leaguers arguably meet the four factors of the test, the principles of control and economic dependency that have historically been at the crux of the employee-employer relationship analysis are arguably lacking here. Colleges do not have the same hold over these non-scholarship students, as their ability to afford college is not inextricably linked to their on-field participation.             Again, refining the Third Circuit’s test will allow courts to better analyze these non-scholarship students. Maybe the answer is that walk-ons are not employees—but these players make up almost half of all Division I athletes. [13]   How might such a finding impact team morale, if, say, scholarship athletes were to receive minimum wage, while their walk-on counterparts (who devote the same amount of time and effort to their sport) did not? [14] Enter Stage Right: The College Marching Band As discussed above, under the multifactor test, certain student-athletes may well achieve employee status. While the court’s framework may resolve certain questions surrounding the classification of student-athletes, it simultaneously opens the floodgates for other students participating in comparably demanding collegiate activities. A prime example of this would be students participating in collegiate bands or orchestras. Many of these music departments are run like a sports team. Sure, the efforts of a marching band may not match the physical rigors readily apparent of, let’s say, the college’s Division I women’s basketball team. But to be clear, a student’s 40-yard dash time or max deadlift are not elements of the test. [15]   To illustrate this point, it is worth recapping the new framework in this hypothetical situation. 1)  Do band students perform services for another party ? Certainly. “Services” is broadly defined. [16] Band students commit to long hours of practice in an effort to provide spectacular performances for the college, sports teams, and tens of thousands of cheering fans and alumni. This form of “work” can be clearly distinguished from the “play” seen in a college’s student-run music club, that might meet casually after class once per week, does not receive investment, and receives little to no oversight from the university. 2)  Are such services primarily for the other party’s benefit ? Arguably yes. Similar to sports, such music programs provide immense benefits to any college or university. The band is used to help with college branding, marketing, and student recruitment. The band is a central component to major collegiate sporting events, where cheery fans and sentimental alumni light up at the sight of an epic halftime performance. [17] While revenue generation isn’t a factor here, it’s worth noting that colleges reap financial benefits through ticket sales for band performances and concerts. [18]  It is true that certain students (e.g., music majors) may receive academic credit for their participation, but this is not the case with all band members. 3)   Are band students under that party’s control ? Yes. The nation’s elite marching bands arguably have more demanding schedules than less-rigorous Division I sports teams. Some students devote over 25 hours a week to marching band. [19]   Like coaches, band directors have significant control over band members, such as through setting rigid practice schedules during the school week, and dictating when, where, and how the band performs. 4)   Do band students perform services in return for “express” or “implied” compensation ?  Yes. Many college band programs provide scholarships to exceptional musicians. Along with express compensation, similar to varsity walk-ons, many band members will also receive implied benefits, such as travel accommodations, meals, and access to facilities, apparel, and instruments. So, what is a court to do when scholarship-toting students of an elite band claim they are owed minimum wage? Conceivably, these students must be classified as employees too. [20]   Conclusion The Third Circuit’s ruling in Johnson should be seen as a win for the Plaintiffs. The Court created a workable framework that will likely result in many Division I student-athletes receiving recognition as employees entitled to the rights afforded under the FLSA. While the implementation of a new framework was a necessary step in this saga of FLSA litigation, the test must be fine-tuned in subsequent cases to more clearly explicate the intent of the framework and consider how the NCAA may artfully circumvent the classification factors. As courts prepare for the fact-intensive exercise of evaluating the plethora of varied Division I programs across the country, colleges should simultaneously prepare to add student-athletes to their payroll. While much is yet to be settled, this is certainly an opportunistic time for student-athletes. After securing the long overdue right to profit off of their own NIL, many of these student-athletes will likely soon be justly compensated for their labor, too. Nat Sherrick is the first-prize winner of the 2024 Conduct Detrimental Sports Law Writing Competition. She is a graduate of the Georgetown University Law Center Class of 2023. She can be found on LinkedIn here . Sources: [1]   Johnson v. Nat’l Collegiate Athletic Ass’n , 108 F.4th 163 (3d Cir. 2024). [2]   Id.  at 175. [3]   Id. at 180 (internal citations omitted). [4]   Id. (explaining that, unlike college athletes, unpaid interns “enter[] into the relationship with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment”) (quoting Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 535–36 (2d Cir. 2016)). [5]   See Id . (“Glatt’s overall utility with respect to college athletes is undercut by its accurate presumption that unpaid interns all perform work for their employers.”). [6]   See e.g.,   Cmty. for Creative Non-Violence v. Reid , 490 U.S. 730, 742–52 (1989) (applying the 11-factor common law agency test, in which the central question is whether the hiring party has the right to control “the manner and means by which the product is accomplished”); see also Department of Labor, Fact Sheet 13: Employee or Independent Contractor Classification Under the Fair Labor Standards Act (March 2024) (explaining that under the Department of Labor’s economic real ities test, employee status under the FLSA is determined by looking at the economic realities of the worker’s relationship with the employer and if the economic realities show that the worker is economically dependent on the employer); Dynamex Operations W., Inc. v. Superior Court , 416 P.3d 1, 34 (Cal. 2018) (stating that the ABC test is often applied in the gig economy context). [7]   Dawson v. Nat’l Collegiate Athletic Ass’n , 250 F. Supp. 3d 401, 407 (N.D. Cal. 2017), aff’d,  932 F.3d 905 (9th Cir. 2019) (“[T]he premise that revenue generation is determinative of employment status is not supported by the case law.”); Livers v. Nat’l Collegiate Athletic Ass’n , No. CV 17-4271, 2018 WL 2291027, at *15 (E.D. Pa. May 17, 2018) (same).  [8]  As the opinion notes, work is “broadly” interpreted in the FLSA context. See   Johnson , 108 F.4th at 178. [9]  Cal. Educ. Code § 67450(c) (finding that Division I student-athletes “generate large revenues for many athletic programs [and] spend approximately 40 hours per week participating in their respective sports”). [10]   Johnson , 108 F.4th at 180. [11]   See Kiah Haslett, Athletes Allowed to Play for Course Credits , The Daily Nebraskan, April 8, 2009 (reporting that student-athletes from the University of Nebraska and other Division I colleges have the option of receiving academic credit for participation in sports).  [12]  Arguably, for the protection and prosperity of student-athletes, such educational programs should already be in place. [13]  According to the NCAA, forty-six percent of Division I athletes are walk-ons. Discover, The Five Most Common College Walk-on Questions (Jul. 10, 2018) https://discover.sportsengineplay.com/recruiting/five-most-common-college-walk-questions . [14]  Although “team spirit” is not a legal factor a court might consider, teams should prepare for the real-world impacts that could stem from the application of this framework, including having a contentious effect on player dynamics.  [15]  To be clear, it is a well established employment law principle that work does not require exertion.  See IBP, Inc. v. Alvarez , 546 U.S. 21, 25 (2005) (“[E]xertion [is] not in fact necessary for an activity to constitute work under the FLSA. . .. [A]n employer, if he chooses, may hire a man to do nothing.”) (internal quotations omitted). [16]   See supra note 7. [17]   See, e.g., Ohio State University Marching Band, The Ohio State University Marching Band Performs their Hollywood Blockbuster Show , YouTube (Oct. 27, 2013) https://www.youtube.com/watch?v=DNe0ZUD19EE ; Ohio State News, The Ohio State University Marching Band: Michael Jackson Tribute , YouTube (Feb. 17, 2014) https://www.youtube.com/watch?v=RhVAga3GhNM .  [18]   E.g.,  The Ohio State University Marching and Athletic Bands, Hometown Concert 2024 https://tbdbitl.osu.edu/events/hometown-concert (last visited Nov. 7, 2024). [19]  J.P. Cumberledge, The Time Usage of College Music Majors, Non-Music Majors, and Marching Band Participants, 7(2) Sage Open (2017). [20]  Arguably, this shouldn’t be too much of a challenge, considering that most colleges already have thousands of work-study students on their payroll. Also, should colleges effectively implement a system for determining and administering student-athlete wages, adding student-musicians to their payroll would be feasible.