By: Josh Goldberg, Esq. and Carter Gaines *
The amateur status of NCAA student-athletes has always felt tentative and as the landscape of college sports has changed rapidly following the introduction of Name, Image, and Likeness, it is clear we are entering a new era of collegiate athletics. The outcome of Johnson v. NCAA will have a transformative effect on college sports if student-athletes are deemed employees of their universities, which may have unintended consequences.
For years, the NCAA has hidden behind its amateurism model to uphold the traditions of collegiate sports. The NCAA believes student-athletes should not get paid because they are amateurs and amateurs don’t get paid – a circular argument that rests on the definition of amateurism and does not consider distinctions between what constitutes an employee.
The Facts in Johnson v. NCAA
The plaintiffs in Johnson include former Villanova football player Trey Johnson and other Division 1 student-athletes, who are arguing that student-athletes should be considered employees subject to the Fair Labor Standards Act (FLSA) and should be paid for their time related to their athletic activities.
The case was originally filed in the United States Eastern District Court of Pennsylvania in November 2019 against the NCAA and roughly two dozen colleges. The athletes are claiming that they are entitled to back pay and damages for unjust enrichment as the NCAA and member institutions profited at their expense.
Student-athletes do not have the option to play NCAA sports for wages at any NCAA D1 school. All member schools in the NCAA have agreed not to pay students to participate in intercollegiate varsity sports and the NCAA’s bylaws prohibit schools from offering wages and prohibit student-athletes from accepting wages. Additionally, student-athletes at NCAA D1 schools must schedule classes around their required NCAA athletic activities, often not being able to enroll in classes they would like to take or declare in their preferred major area of study.
The NCAA and its member schools exercise significant control over student-athletes when it comes to school schedules, travel, practice, participation in athletic activities and games, and Countable Athletic Related Activities (CARA), which are recorded on timesheets under NCAA bylaws. Student-athletes have reported spending more than 30 hours per week on athletically related activities, both CARA and non-CARA, while football players alone have reported spending more than 40 hours per week on these activities.
The NCAA moved for a motion to dismiss in the lower court and argued plaintiffs failed to state a claim because plaintiffs did not allege facts that would establish whether they are employees, which is a requirement to bring a claim under the FLSA. The motion to dismiss was denied and the NCAA appealed the decision to the 3rd Circuit.
Procedural Posture – Where are we today?
On February 15, 2023, a three-judge panel for the Third District Court of Appeal heard oral arguments in Johnson v. NCAA .
The NCAA argued student-athletes cannot be employees because they have never been considered employees before. They have pointed towards Department of Labor guidelines which prohibit college athletes from possessing employee status. The 9th and 7th Circuit courts previously ruled that college athletes are not employees protected by FLSA law in Dawson v. NCAA and Berger v. NCAA . However, given the recent change in sentiment around the nature of collegiate athletics there is reason to believe the 3rd Circuit could rule differently in Johnson .
The NCAA is relying heavily on a 1992 decision in Vanskike v. Peters . Vanskike discusses whether prisoners are employees of a prison, and its ruling cites a “slavery loophole” in the 13th Amendment, stating that slavery is not legal unless it is being used as punishment for a crime. While the NCAA is not comparing student-athletes to prison inmates, their willingness to use such a controversial case for a carve-out to avoid running an employment test is indicative of the lengths they are willing to go to make their argument.
The student-athletes argued they should be paid for the time they spend in practice and competitions, and if they are covered by the FLSA, student-athletes should receive minimum wage and overtime pay similar to a work-study student. Such a determination could significantly alter the landscape of college sports. Notably, if college athletes are deemed to be employees of universities or conferences, they would be entitled to unionize. Student-athletes could collectively bargain for university-provided benefits and could even go so far as collecting a share of revenue generated by athletic departments.
The three-judge panel seemed unpersuaded by the NCAA’s legal team in February. The panel asked pointed questions about the glaring discrepancies between weight rooms for men’s and women’s basketball programs, as evidence of inequities inherent to the NCAA, questioned why the governing body was comfortable with student-athletes at service academies being treated as employees and getting paid but not student-athletes at other D1 schools, and stressed that college athletes are under a level of control not faced by their classmates.
Should the 3rd Circuit rule in favor of the student-athletes, there would be a circuit split regarding athletes being deemed employees, which would likely need to be reconciled by the Supreme Court.
What’s Next?
It will probably be a few months before we find out how the Third District Court of Appeal will rule on the pending interlocutory appeal. If the Court affirms the District Court’s denial of the motion to dismiss, the case will be remanded so it can proceed to trial. If the plaintiffs prevail, there could be unintended consequences for women’s athletics. Assuming Title IX still applies under the employee model suggested, the protection would require the benefits that a university provides male and female athletes to be comparable. Since football and men’s basketball drive revenue for the rest of the athletics department, both women’s sports and non-revenue sports would be at risk of elimination. However, as argued by the student-athletes and supported by the National Labor Relations Board, not all college athletes may be deemed employees – just some sports.
Taking the panel’s reaction to the NCAA’s argument in step with Justice Brett Kavanaugh’s concurrence in NCAA v. Alston , in which he dismissed the logic behind refusing to pay college athletes because they are college athletes as circular, the plaintiffs in Johnson seem to have more momentum than their predecessors.
Given the massive ramifications for college athletics, expect increased attention toward Johnson as the case progresses. Make sure to subscribe to our blog for updates on Johnson v. NCAA and other Sports Law and NIL topics.
*Not an attorney; Carter Gaines is a 2L at Emory University School of Law and a law clerk with Greenspoon Marder’s Entertainment & Sports Law practice. Mr. Gaines has worked as a talent agent, connecting celebrity and influencer talent with consumer brands.
