It’s been said that concurring opinions are neither” the law” nor “precedent” since they do n’t reflect the majority of a court. They simply show that a judge is in favor of the majority’s decision for a different purpose.
Yet as college sports has seen through Justice Brett Kavanaugh’s oft-cited concurring opinion in NCAA v. Alston ( 2021 ), those opinions can shape attitudes. Even with the exception of the former setting the law, they can actually gain more power than the majority opinion.
Some court and company filings have strongly invoked Kavanaugh’s consent, where he–unlike the various eight U. S. Supreme Court justices–described the NCAA as a gang. His words have frequently been used in legal disputes involving college athletes ‘ employment, award caps, NIL cooperatives, and also UFC fighter salaries.

It remains to be seen whether Judge David Porter’s concurring judgment in previous Thursday’s ruling by the U. S. Court of Appeals for the Third Circuit in Johnson v. NCAA gains comparable grip.
Porter, who like Kavanaugh was nominated by President Donald Trump, suggested that while FBS football people,” March Madness-level men’s hockey people” and possibly other revenue-generating college athletes good meet the legal definition of work, another college athletes definitely do not.
It’s a variation that is well-known in some areas of school activities. Butler has today lent it legality.
The 58-year-old judge backed Judges Luis Felipe Restrepo and Theodore McKee in upholding U.S. District Judge John Padova’s rejection of a lawsuit involving DI college athletes who claimed they were employees of their institutions and the NCAA in accordance with the Fair Labor Standards Act ( FLSA ) and state laws.
The guiding principle of Johnson is that college players are engaged in work similar to those of work-study students, who are usually paid the minimum wage when operating agreements and purchasing tickets for games where their colleagues are n’t compensated. Brought by six players ( representing sports, swimming, diving, baseball, football and rugby ), Johnson is not about paying college sports market prices or permitting them to organize. It’s rather about treating college sports the same as their work-study peers.
Even at this low level of employment, there is still a lot of room for debate about which players may qualify as FLSA employees.
Restrepo, joined by McKee, authored the majority viewpoint. He quickly critiqued the NCAA’s “revered method of amateurism”, which Restrepo said cannot table college players from gaining work. Restrepo also took time to explain why he used” college athlete” instead of” student-athlete”, casting the latter as an “NCAA marketing invention” that obfuscates commercial realities. Restrepo also emphasized that “work” and “employee position” may be widely understood, which would suggest an expansive view of college players as people.

In contrast, Porter’s concurring opinion focused on how assessing college athlete employment is “intensely fact-bound” and that one size wo n’t fit all.
Porter observed that if Johnson is certified as a class action, courts will need to determine “whether nearly 200, 000” DI athletes “playing on nearly 6, 700 teams” are FLSA employees. He argued the relevant facts are “rapidly changing” and “vary widely across many thousands of student-athletes, teams, sports, colleges, and universities”.
The judge emphasized how the economic connection between a Power Four conference football team quarterback and his university can be made in real life from” the connection between, let’s say, a Conference USA school and a bowling team member.”
Porter underscored he rejects the NCAA’s position that amateurism precludes employment. He stressed” a combination of market forces, decades-spanning behavior of the NCAA and some Division I teams and athletes, and the Supreme Court’s relevant antitrust decisions have enervated” the “existence or virtue of amateurism” for some college athletes.
However, Porter found the majority opinion to be insufficient because it provided” no guidance about how courts or factfinders applying an economic-reality test should consider student-athlete participation in non-revenue sports.” He wondered if those athletes are “part of the business of a college university” and whether a college benefits “from revenue-negative athletic programs”. He insisted responses to these questions ca n’t be “answered in the gross” but instead differ “among individuals, teams, sports, and schools”.
Porter also asserted that playing sports, in and of itself, is” not work”.
He remarked that “play is arguably a fundamental human good that many pursue for its own sake.” Porter surmised that if a college athlete participating in fencing, water polo, rifle, golf or skiing “is engaged in play rather than work”, then” the FLSA simply does not apply”. The judge acknowledged how the FLSA does n’t define “work” but wrote the term has been interpreted to exclude undertakings that “primarily” are” for pleasure, sport, or immediate gratification”.
In another critique of the majority opinion, Porter took issue with Restrepo’s directions to Padova. Restrepo instructed Padova to apply a four-part “economic realities” test that weighs whether college athletes ( a ) perform services for another party, ( b ) necessarily and primarily for the college’s benefit, ( c ) under the college’s control or right of control and ( d ) in return for “express” or “implied” compensation or “in-kind benefits”.
Porter wonders how Padova will determine if college athletes perform” services” for their schools. According to Porter, “anyone who has ever played on a team” provides services” for the good of the entire team,” which he added, “is the whole point of team sports.” He suggested that the word” services” is too ambiguous in this context because it might refer to anyone who might be a part of a team sport.
As for the second factor, Porter argued that while joining a college team benefits the college, “it’s a fundamental correlate of matriculation and team membership,” according to Porter. The judge argued that under that standard, there is no limiting principle because athletes who play for DII, DII, and high school also “benefit” their schools by forming a team.
Porter also questioned how Padova will apply the third factor, which involves the university’s control or right of control of athletes. He made the implication that even high school athletes could be classified as employees under this circumstance. While their coaches evaluate players, compile rosters, and allocate playing time, those athletes “do not set their own rules for recruitment and college students do not set their own rules for eligibility and participation.”
The fourth factor, the exchange for compensation, is appropriate but requires more refinement, in Porter’s view. He stressed that while FBS and top college basketball attract “lucrative television deals”, the “economic reality” for most college athletes “is revenue-negative”. In a footnote, Porter made clear he is n’t suggesting employment hinges on profitability–Amazon losing more than$ 2 billion in 2022 obviously did n’t terminate the employment status of its employees–but instead said the distinction “may help to separate… those student-athletes who ‘ work’ for the tangible benefit of their university from those whose’ play’ confers no comparable benefit”.
Porter continued by stating that other legal issues would arise if employees were recognized as FLSA employees. He mentioned how colleges could lose access to “tax-advantageous rules” that are based on the intercollegiate athletics emphasis on education. Additionally, Porter made mention of how employment recognition might have problems with immigration law for college athletes who are from other nations. He added that the FLSA employment status would” strate the percolating debate over transgender athletes ‘ participation on opposing-sex teams.” Porter noted that Title VII, which per the U. S. Supreme Court’s ruling in Bostock v. Clayton County ( 2021 ) prohibits employment discrimination on the basis of gender identity, would apply to collegiate athletics.
Whether Porter’s more cautious view of college athlete employment shapes judges, lawmakers, regulators and other influential figures remains to be seen.
How Padova will apply the four-part test in its initial stages. In 2021, he favorably cited Kavanaugh’s concurrence in blasting NCAA amateurism. Padova wrote the NCAA possesses substantial employer-like powers, that college athletes already lodge work hours through countable athletically related activities ( CARA ), that colleges exert substantial, employer-like control over athletes ‘ time and conduct, and that the NCAA acts like an employment record-keeper through its eligibility center.
The NLRB’s 2021 memo, which advocated for college athletes to be employees within the meaning of a different labor law ( the National Labor Relations Act or NLRA ), and NLRB regional director Laura Sacks ‘ February decision that Dartmouth College men’s basketball players are employees within the meaning of the NLRA, are similar in scope to Padova’s argument.
While the NCAA hopes to settle antitrust litigations, it appears to be losing its fight against college athlete employment. The NCAA might not care whether college athletes are employees, but rather which ones.