*Grace Clarke
I. Introduction
The spring of 2021 was a rejoiceful time for many college athletes across the country—they could finally be paid for their play.[1] The debate of amateurism in college sports has lingered for decades, but the Supreme Court officially addressed the matter in NCAA v. Alston.[2] Student athletes brought a lawsuit alleging that the National Collegiate Athletic Association (NCAA) violated federal antitrust law[3] by restricting the compensation that colleges and universities could provide students who played on their sports teams.[4] However, this case did not address whether students, who could now receive payment by their schools, are actual employees of the schools.[5] The debate of employment status continues to run rampant in courts and legislatures across the country, as well as the discussion as to the risks and benefits of this status for student athletes.[6]
II. National Labor Relations Board
The question about whether student athletes are employees has not been directly addressed by the National Labor Relations Board (NLRB); however, its review of recent complaints demonstrates that it is considering whether college athletes should be identified as employees.[7] In December of 2022, the National College Players Association (NCPA), on behalf of football and basketball players at the University of Southern California, filed charges with the NLRB against the NCAA to “affirm college athlete employee status for every FBS[8] football player and Division I basketball player at every public and private university in the nation.”[9] The NLRB directed its Los Angeles Regional Office to pursue charges of unfair labor practices.[10] The NCPA previously brought this issue to the NLRB to determine whether student athletes are employees of the school with the right to unionize, but the Organization did not succeed.[11]
III. Johnson v. NCAA
In the pending Third Circuit case, Johnson v. NCAA, student athletes across multiple colleges and universities brought suit arguing that “student athletes who engage in interscholastic athletic activity for their colleges and universities are employees who should be paid for the time they spend related to those athletic activities.”[12] The plaintiffs contend that they should be paid for their time because student athletes should be considered employees subject to the Fair Labor Standard Act (FLSA).[13] A three-judge panel for the Court of Appeals for the Third Circuit heard this case on February 15, 2023, after defendants filed an interlocutory appeal.[14]
A decision in favor of the plaintiffs would result in a circuit split, opening the door for the Supreme Court to determine how to classify student athletes: both the Ninth Circuit[15] and Seventh Circuit[16] previously found that student athletes are not employees of the school and therefore not protected by the FLSA.[17] However, both Circuits addressed the issue prior to the Supreme Court’s decision in Alston.[18]
IV. Developing Legislation
Senators in Congress have called for legislative action to clarify issues such as employee status for student athletes.[19] Both Senator Ted Cruz and Senator Joe Manchin have introduced bills that do not specifically state whether student athletes are employees, but discuss reform that would inherently answer the question.[20] Another potential bill, the College Athletes Protection and Consumer Act, drafted by Senators Blumenthal, Moran, and Booker, would “reform and strengthen college athletics, and make sure athletes get the support and protections they need while setting baseline, national standards.”[21] While none of these proposed bills specifically address the employment status of college athletes, each of these Senators have spoken out against classifying athletes as employees.[22]
V. Conclusion
What are the potential effects of deeming student athletes employees of their schools? While organizations such as NCPA have advocated tirelessly for the cause, others do not believe the benefits would be so great. As employees, student athletes would have the right to unionize.[23] Additionally, collegiate athletes could potentially seek compensation for the time spent playing, as championed by the plaintiffs in Johnson.[24] On the other hand, at a Senate hearing in October of 2023, the President of the NCAA discussed the possible consequences, including “scholarship awards taxed under U.S. employment laws” and that “smaller schools would be forced out of the college sports business entirely as they do not have large athletic budgets.”[25] The Senate hearing emphasized the need for regulation, as courts and states grapple with the issue themselves. Legislation is essential to regulate the authority granted in Alston, so student athletes can be just that—not student-athlete-employees.
*Grace Clarke is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. During her first-year summer, Grace worked as a judicial intern for the Honorable Judge Laura S. Ripken on the Appellate Court of Maryland. In May, she plans to join Miles & Stockbridge P.C. as a summer associate in the Labor and Employment Practice Group.
[1] Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021).
[2] Id. at 2147.
[3] See 15 U.S.C. § 1. “Specifically, they alleged that the NCAA’s rules violate § 1 of the Sherman Act, which prohibits ‘contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.’” Alston, 141 S. Ct. at 2151.
[4] Alston, 141 S. Ct. at 2147.
[5] Id.
[6] See, e.g., Johnson v. Nat’l Collegiate Athletic Ass’n, 556 F. Supp. 3d 491, 495 (E.D. Pa. 2021); Protecting Athletes, Schools, and Sports Act of 2023, S. 2495, 118th Cong. (2023).
[7] Kelly Lienhard, Sens. Say Student-Athletes Should Not Be Deemed Employees, Law 360 (Oct. 17, 2023, 8:43 PM), https://www.law360.com/employment/articles/1732612/sens-say-student-athletes-should-not-be-deemed-employees.
[8] See FBS VS. FCS Explained, Signing Day Sports: The Wire (Oct. 7, 2022), https://thewire.signingdaysports.com/articles/fbs-vs-fcs-explained/. Football Bowl Division (FBS) is the highest level of NCAA football.
[9] NCPA Files NLRB Charges for College Athlete Employee Status, Wages,NCPA, https://www.ncpanow.org/releases-advisories/ncpa-files-nlrb-charges-for-college-athlete-employee-status-wages (last visited Mar. 22, 2024).
[10] Chris Isidore, NLRB Opens Door for Union for College Athletes, CNN (Dec. 15, 2022, 10:14 PM),https://www.cnn.com/2022/12/15/business/nlrb-unfair-labor-practice-athletes-usc-pac-12-ncaa/index.html.
[11] Id.
[12] Johnson, 556 F. Supp. 3d at 495.
[13] Id.
[14] Id.
[15] Dawson v. Nat’l Collegiate Athletic Ass’n, 932 F.3d 905, 907 (9th Cir. 2019) (holding that college football players are not employees of the National Collegiate Athletic Association (NCAA) and PAC-12 Conference (PAC-12) within the meaning of the Fair Labor Standards Act (FLSA)).
[16] Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 288 (7th Cir. 2016) (finding thatstudent athletes at the University of Pennsylvania are not employees entitled to minimum wage under the FLSA).
[17] See Josh Goldberg & Carter Gaines, What You Need to Know About Johnson v. NCAA, Greenspoon Marder LLP (May 1, 2023),https://www.gmlaw.com/news/what-you-need-to-know-about-johnson-v-ncaa/.
[18] Compare Dawson, 932 F.3d 905 and Berger, 843 F.3d 285 with Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021).
[19] Lienhard, supra note 7.
[20] Id.
[21] Richard Blumenthal et al., College Athletes Protection and Compensation Act Discussion Draft, Richard Blumenthal, U.S. Sen. for Conn. (July 20, 2023), https://www.blumenthal.senate.gov/imo/media/doc/07202023college_athletes_protection_and_compensation_actonepager.pdf.
[22] Lienhard, supra note 7.
[23] NCPA, supra note 8. “Unionized professional sports leagues and players have a collective bargaining agreement (CBA) that sets player compensation at a fair market rate of 50% of total revenue and comprehensive benefits.” Id.
[24] Johnson v. Nat’l Collegiate Athletic Ass’n, 556 F. Supp. 3d 491, 495 (E.D. Pa. 2021).
[25] Lienhard, supra note 7.
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