Are Student Athletes Employees?

College student athletes across the country sit and wait for the U.S. Court of Appeals for the Third Circuit to determine if they are considered employees and entitled to all the protections of any other employee. The Court has agreed to hear an interlocutory appeal on the question of whether Division I student athletes can be employees of the schools they attend, entitling them to pay under the Fair Labor Standards Act.

The initial lawsuit claiming DI student-athletes are employees entitled to payment under the Fair Labor Standards Act (FLSA) was filed by Trey Johnson, a former Villanova University football player, against the NCAA and two dozen institutions (Johnson v. the NCAA). Several other student-athletes have joined the lawsuit and seek protection of student-athletes across the spectrum of DI sports. The American Council on Education has filed an amicus brief arguing intercollegiate athletics work to enrich a student-athlete’s educational experience and like other extracurricular activities, they are not business ventures. Student-athletes are students first and although participation is demanding, it does not convert a student-athlete to an employee-athlete.

The U.S Court of Appeals for the Seventh Circuit in Berger v. NCAA affirmed a district court’s decision that track and field student-athletes at the University of Pennsylvania were not employees of the university under FLSA. In a similar decision, Dawson v. NCAA, the U.S. Court of Appeals for the Ninth Circuit ruled student athletes were not employees of the NCAA or their athletic conference because the NCAA is more akin to a regulator than an employer. A decision by the Third Circuit finding student-athletes’ employees would elevate the matter to the U.S. Supreme Court given the inconsistency of the rulings.

Adding another twist and turn in this road is a memorandum issued by Jennifer Abruzzo, General Counsel to National Labor Relations Board (NLRB) stating college athletes should be considered employees and afforded the same protections as any other worker. In her memo she writes “Under common law, an employee includes a person who performs services for another and is subject to the others control or right of control.” The NLRB is the independent agency that enforces U.S. labor law as it relates to collective bargaining. In classifying collegiate athletes as employees, the NLRB memo opens the door to unionization and other forms of labor actions.

These decisions appear to be the latest chapter of an athlete rights movement which generated seismic changes to archaic NCAA policies governing athlete compensation and transfer among academic institutions. With the Supreme Court ruling in the NCAA v. Alston antitrust lawsuit, it appears the country’s attitude has shifted in favor of players rights over those placed in charge, conference officials, school administrators and coaches.

A decision from the U.S Court of Appeals for the Third Circuit is expected in early 2023.