Stop us if you’ve heard this before, but the NCAA is being challenged in court about whether the bedrock upon which college sports rests is legal, as Johnson v. NCAA is set to be heard in front of the U.S. Court of Appeals for the 3rd Circuit. While that question won’t be directly decided at this hearing, what happens during and after it could go a long way toward deciding the future of amateurism in college athletics.
What is on the docket for Feb. 15?
The key question at hand is whether under the Federal Labor Standards act of 1938—which established, among other things, a federal minimum wage—athletes are employees of their schools and the NCAA in a joint employer relationship. This hearing will not answer that question directly. More specifically it is on the docket in order to determine whether athletes can be found to be employees. If it sounds like a technicality, that’s because it is.
The case is currently in the 3rd Circuit Court of Appeals, which means the outcome would cover athletes in Delaware, New Jersey and Pennsylvania. A lower court has not dismissed the case, and the NCAA is appealing that decision, seeking a ruling that would not allow the case to go to trial. The schools/NCAA are essentially trying to get the case dismissed on the grounds that if they can’t be employees at all, then what are we doing here, anyway?
What do the plaintiffs want?
The plaintiffs are a group of athletes led by former Villanova football player Trey Johnson. The scope of how many are involved with this lawsuit could be affected by this hearing’s ruling, but there’s a core group of six former college athletes that are attached to this no matter what and they are arguing, among other things, that the NCAA is the joint employer of athletes by FLSA standards. They say they should be paid for the time they spend in practice and competition, the former of which is already tracked by the NCAA’s 20-hour practice rule, and athletes sign time cards with their athletic departments certifying they don’t exceed that. The plaintiffs assert they are no different than a student ticket taker or a student library worker. They work while in school, and therefore they should be paid for that. This case is concerned only with compensation, and not athlete unionization, which is a separate issue in the hands of the National Labor Relations Board.
The plaintiffs want the court system to run a multifactor test to determine whether they can be employees (common in FLSA disputes), and their legal team is confident that after such a test is performed, they will be found to meet the criteria.
What is the NCAA arguing?
The NCAA and the schools have—obviously—asked for the case to be dismissed completely multiple times. The NCAA is arguing that, legally, college athletes are not employees now and cannot be employees because they never have been before. It’s the common page the NCAA takes out of the legal playbook, the main argument being that college athletes are amateurs and should stay amateurs because amateurism is sacred. The NCAA also has argued that the department of labor guidelines do not allow for college athletes to be employees. A lower court has said that those reasons are not grounds to throw the case out.
The NCAA also uses a case, Vanskike v. Peters, as a legal precedent for their argument about why a multifactor employment test should not be performed. That case relates to whether prisoners are employees of a prison and its ruling cites the 13th Amendment and a so-called slavery loophole that states slavery isn’t legal unless it’s being used as punishment for a crime. The NCAA is not directly comparing college athletes to slave labor, but it is using that case as an example of a unique carve-out to avoid running an employment test. Its use hints at the Hail Mary nature of the NCAA’s argument, considering the optics at play.
Beside all of this is the NCAA’s continued overtures to Washington, D.C., for federal policy concerning multiple aspects of college sports, with the employment question one of the main ones. The NCAA wants to be able to lobby policy-makers and have more of a stake in the process rather than having the courts decide its fate in possible outcomes far beyond its control.
What happens depending on the outcome of this specific hearing?
If the NCAA prevails in this hearing, the case would most likely be dismissed, and that is the most straightforward way this could go.
If the plaintiffs prevail, the court system will run a test to determine whether under FLSA guidelines, athletes are employees (there’s no telling how long that process will last. It could take multiple weeks or months to determine whether a multifactor test can be performed, then the district court would have to actually run the test). What we may get is an inkling of which way the court system may be leaning. However, the fact the case covers only the three states mentioned actually means the Supreme Court may take the case up, because if the athletes fully prevail and win their case, other circuits would be operating on a different playing field based on cases decided in other circuits. It is a long shot that the Supreme Court will take up any case on any issue, but if they do step in here, it would be another complicating factor.
A so-called circuit split would be chaos for college sports, and Supreme Court Justice Brett Kavanaugh has already signaled the high court of the land is interested in hearing further cases about college athlete compensation after his searing 2021 concurring opinion in an antitrust case the NCAA lost 9–0. He has called that opinion his favorite.
What are the downstream effects here?
This case will not decide how much the athletes would be paid as long as it was at least the hourly federal minimum wage. There are the common worries about how schools can afford this, which the plaintiffs assert isn’t a reason not to give a group of people employee status. There is also common hand-wringing from the NCAA about what happens when athletes can be formally fired and the tax implications on athletes and schools. The court has also asked both sides to be prepared to answer questions about the impacts on Title VII and Title IX, which neither side expects to impact the result, but will be something in the record moving forward.
This case is just one way the question of whether college athletes will be employees in the future is being tested.
