ACE, Other Higher Ed Groups Call on Courts to Define Student-Athletes as Students, Not Employees
June 08, 2022

ACE and 12 other higher education associations submitted an amicus brief yesterday to the U.S. Court of Appeals for the Third Circuit in the case Johnson v. the NCAA regarding whether NCAA Division I student-athletes in all sports should be considered employees of their college or university.

Trey Johnson, a former Villanova University football player, initially filed the lawsuit in 2019 against the NCAA and nearly two dozen institutions claiming that DI student-athletes are employees entitled to payment under the Fair Labor Standards Act (FLSA). Additional Division I athletes eventually signed on as representative plaintiffs. They are seeking to have the case certified as a class action on behalf of student-athletes across the spectrum of DI sports—including non-revenue sports—against a class of all private and semi-public NCAA member DI colleges and universities.

Last August, Judge John Padova of the U.S. District Court for the Eastern District of Pennsylvania denied the NCAA’s motion to dismiss the case, and subsequently the district court’s consideration of the case was put on hold while the U.S. Court of Appeals for the Third Circuit in Philadelphia considers and decides the core question of the FLSA’s application to DI student-athletes.

The association’s brief argues that intercollegiate athletics work to enrich a student-athlete's educational experience and like other extracurricular activities, they are not business ventures. Fundamentally, student-athletes are students first. Although participation on a DI athletics team is demanding and requires commitment, it does not convert a student-athlete into an employee-athlete.

Furthermore, although a handful of NCAA teams—typically within Division I football and men’s basketball—have garnered widespread popularity and generate sizable revenues, the overwhelming majority of NCAA teams run deficits each year. Therefore, the associations said, “it would make little sense to read the FLSA as treating student-athletes as employees merely because a small fraction plays on teams that are revenue-positive.”

The brief also points out that all three branches of the federal government have long understood that intercollegiate athletics belong firmly in the domain of education and do not give rise to an employment relationship, including the only two federal appeals courts that have weighed in on the issue.

In 2016, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Berger v. National Collegiate Athletic Association affirmed a district court's decision that track and field student-athletes at the University of Pennsylvania were not employees of the university under the FLSA.

Similarly, in a 2019 decision in the case Dawson v. NCAA, the U.S. Court of Appeals for the Ninth Circuit ruled that student athletes were not employees of the NCAA or their athletic conference because the NCAA is more akin to a regulator than an employer.

For its part, Congress has acted consistently with the notion that student-athletes are not employees—for example, directing that Title IX regulations cover intercollegiate athletics instead of relying on Title VII, which already protected against discrimination in employment.

“Of the virtual tsunami of athletic lawsuits and issues rolling across the higher ed landscape these days, this case and the framing of this specific issue before the federal appeals court is particularly significant,” said ACE Vice President and General Counsel Peter McDonough. “A decision by the third circuit favoring the plaintiffs would virtually guarantee an eventual elevation of the issue to the Supreme Court, given the prior rulings in the other direction by the seventh and ninth circuits.”

Last June, the Supreme Court unanimously ruled in NCAA v. Alston that student-athletes could not be barred from receiving relatively modest payments related to education. However, the issue in Johnson is different from the one decided in the Alston litigation, where the Supreme Court held that the NCAA’s cap on the dollar amount of education-related benefits was a violation of the federal antitrust laws.

A decision in Johnson v. the NCAA is expected later this year.

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