Hot topics pertaining to student-athlete issues have recently dominated the sports law space, from Name, Image, and Likeness (“NIL”) regulation, to class action lawsuits against the NCAA, and NCAA conference realignment. McLane Middleton’s Sports Practice Group has written extensively about student-athletes and these current issues. This article intends to shed some light on the argument of student-athletes as employees of their college or university.
In the words of Taylor Branch:
The term “student-athlete” was deliberately ambiguous. College players were not students at play (which might understate their athletic obligations), nor were they just athletes in college (which might imply they were professionals). That they were high-performance athletes meant they could be forgiven for not meeting the academic standards of their peers; that they were students meant they did not have to be compensated, ever, for anything more than the cost of their studies. (“The Shame of College Sports,” The Atlantic, Oct. 2011).
It is only logical that ambiguity could permeate throughout the classification of student-athletes as employees of their college or university, or as something else entirely. While an employee/employer relationship may seem clear-cut in our day-to-day lives, in practice, it is not. Under the Fair Labor Standards Act (“FLSA”), an employee is defined as “any individual employed by an employer.” Such a definition provides little guidance as to what an employee/employer relationship may look like- especially when the parties do not agree as to whether such a relationship exists. As such, the determination of whether or not a student-athlete is an employee of their college or university is left to the courts.
Common arguments against student athletes as employees have included assertions that: (1) students athletes are amateurs; (2) the Department of Labor has stated that students who participate in extracurricular activities are not considered to be employees; (3) participation in collegiate sports is in furtherance of the student’s education; and (4) student-athletes may receive a scholarship for their college or university. These very arguments are currently before the Third Circuit of Appeals in the case of Johnson v. NCAA. Specifically, student-athletes in Johnson are seeking to be classified as employees and therefore fall under the FLSA. The NCAA and member schools moved to dismiss the case, following a similar argument as described above. The motion was denied and subsequently appealed. In February of 2023, the Third District Court of Appeals heard oral argument on the matter. A determination is forthcoming.
On the other hand, student-athletes have long argued that they should be considered employees. Student-athletes point out that other students involved in athletic events may be employees of their college or university. Traditionally, students employed in work-study programs hold positions such as ticket takers, seating attendants and food concession workers at various sporting events. In these student-athletes’ opinion, their position as employees of their college or university is no different from those other students working at these events.
However, there will always be some nuance to this employer/employee analysis as an employee classification can depend on the state law of where the college or university is located. For example, under Massachusetts law an individual that performs services for an employer is presumed to be an employee so long as that person provides services that are part of the employer’s business and the employer exerts control and direction in fulfillment of those services.
As mentioned above, the debate as to whether student-athletes are employees of their college or university is long running. However, there are some current factors that could potentially sway the outcome of this analysis: first, there is the Johnson v. NCAA case before the Third Circuit of Appeals; second, we are in the beginning of the NIL rights era for collegiate and other amateur sports, and we are beginning to see litigation come as a result of this; third, the United States Congress is proposing various forms of legislation to alter the collegiate sports landscape; and fourth, collegiate sports just underwent the largest conference realignment in decades. Each of these events could have the ability to alter the analysis as to whether student-athletes are employees of their college or university.