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Selling Souvenirs versus Filling Seats: Employees or Amateur Athletes

Credit: Kyle Calzia


Shortly after the NCAA’s monumental decision allowing student-athletes to monetize their image and pursue NIL deals, college sports fans could already see another fundamental change to the NCAA landscape. Student-athletes could receive employment status, based on the outcome of Johnson v. NCAA. This action was brought by Ralph Johnson (later joined by other current and former student athletes), a former football player at Villanova, claiming student-athletes should be recognized as employees and gain the benefits provided by the Federal Labor Standards Act (FLSA).

Student Athlete Status

The case currently sits before the Third Circuit and presents a scenario in which a circuit split could occur. The determining factor is whether or not a student athlete can qualify as an employee under the FLSA. If student-athletes are found to be employees, they will be protected by the FLSA standards, which include regulations on minimum wage, overtime work, and recordkeeping. “The FLSA defines an employee as ‘any individual employed by an employer,’ and employ is defined as including ‘to suffer or permit to work.’ The concept of employment in the FLSA is very broad and is tested by ‘economic reality.’ . . . [I]f a worker is not an employee for purposes of tax law, he or she may still be an employee under the FLSA.”

Both the Seventh and Ninth Circuits have already decided on the issue, finding that student-athletes are not employees in Berger v. NCAA and Dawson v. NCAA. The Seventh Circuit reached this conclusion, “relying in part on the now much-criticized ‘revered tradition of amateurism.’” This is a status the NCAA argues to be “the heart of college sports,” though stands as the main blockade keeping student athletes from being paid. While the Ninth and Seventh Circuit rulings seemed to put the issue to bed, the fact that the concept is tested by “economic reality” may open the door for other interpretations and rulings. The NCAA had its autonomy limited recently by courts, such as in Alston, which ruled that restrictions the NCAA had on “education-related expenses” was a violation of antitrust law. In Alston, Justice Kavanaugh’s concurring opinion blatantly stated how the NCAA’s business model is unfair to students-athletes. “In the wake of the Kavanaugh concurrence, the courts are demonstrating a lot less deference towards that notion of amateurism.”

Historically, the NCAA has made the argument that individuals are limited to either “student” or “employee” status, but not both. This has held up in the past, however a parallel has been drawn between students on both academic scholarship and participating in work study programs. This parallel feeds the argument that if other students receiving scholarship for their tuition and other expenses are able to hold employed positions on and off campus resulting in compensation, then why isn’t the same offering extended to athletes.

Work Study

One of the main arguments being presented by the plaintiff student-athletes in this case relates to other students having the ability to earn money from positions like selling concessions during football games through Federal Work Study programs. “The plaintiffs assert they are no different than a student ticket taker or a student library worker.” This of course hinges on student athletes achieving characterization as an employee, which is at issue in Johnson. Nonetheless, there are other factors to consider with regards to Work Study that may pose hurdles for the plaintiffs. These programs are offered by numerous institutions throughout the United States and provide students with the opportunity to work while pursuing their degree and receive both monetary and experiential gains. Work Study funds are limited and are awarded as a federal financial aid to students who complete the FAFSA form and qualify. “Colleges award work-study funds based on availability of funds, student financial need and other financial aid a student is eligible for.”


The future of this case lies on the decision to be made on the NCAA’s interlocutory appeal of the lower Third Circuit court’s denial of its motion to dismiss. If the Third Circuit departs from the Ninth and Seventh Circuit views, student-athletes could be considered employees. This outcome could change the landscape of college athletics forever as it will likely be the first step on a pathway towards a Supreme Court ruling on the matter. Additional questions will also need to be addressed, including how employee termination will be handled, as well as the impact it will have on Title IX and Title VII. Nonetheless, the issue is not likely to go away even with a dismissal by the Third Circuit.


With that being said, it will be interesting to see the outcome and potential effects of Johnson. Regardless, employment status for student-athletes seems inevitable. So, whether the plaintiffs in Johnson prove successful or not, we are likely to see the student-athletes be recognized as employees.

*The views expressed in this article do not represent the views of Santa Clara University.


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