According to the Fair Labor Standards Act ( FLSA ) and state laws, the U.S. Court of Appeals for the Third Circuit on Thursday upheld the NCAA’s motion to dismiss Johnson v. NCAA, a case in which college athletes assert they are employees of their schools and the NCAA.
The Third Circuit rebuffed the NCAA’s longstanding rule that college sports cannot be both players and staff at the same time, a decision that has significant implications for college activities in America.
The Third Circuit also mandated that the district judge use a different method to evaluate the athletes ‘ jobs.
The people may become owed at least the minimum wage for their work if they were determined to get FLSA employees, and they would also be entitled to overtime pay. Johnson’s case might lead to the NCAA and institutions being ordered to pay numerous millions of dollars in paid wages and required to change sportsmanship regulations to reflect an employee-employer marriage.

Former Villanova basketball player Ralph” Trey” Johnson and various current and former players from more than a few Division I institutions, including Duke, Oregon, Arizona, and Purdue, are in charge of the investigation. Given that their job for the institution is distinct from their studies and given the authority schools have over their time and labor, they contend that they meet the relevant legal requirement for employment.
The idea that colleges adhere to the NCAA’s work regulations, which also apply those rules, is the foundation of the mutual employer model. The people claim that they deserve compensation that is at least comparable to what work study colleagues are paid, some of whom work at concession holds and ticket booths at games where the players are n’t paid. The NCAA may be liable as a mutual employer to pay the athletes if the schools do never. The plaintiffs ‘ attorney, Paul McDonald, elaborated on these items in a new Sportico movie interview.
Theodore McKee, David Porter, and L. Felipe Restrepo, magistrates of the Third Circuit, held a hearing in February 2023 where Johnson and the NCAA’s prosecutors presented opposing claims. The judges explained how much more control colleges place on athletes than on other students, explaining that because of their athletic responsibilities, athletes ‘ ability to choose their courses and degrees is more constrained than their peers. Additionally, athletes have restrictions on what to do, including hiring agents instead of their peers who are professionals in music, theatre, or the arts. College sports are denied the ability to legally wager on activities.
The court’s decision on Thursday is a significant step in that direction, but it does not make the players college staff. The situation then returns to U. S. District Judge John Padova, who in 2021 denied the NCAA’s movement to ignore, to use a different job evaluation. Padova applied the “primary beneficiaries” stochastic evaluation, which was established in Glatt v. Fox Searchlight Pictures, an FLSA circumstance concerning unpaid student interns. Glatt concentrated on the financial connection between the intern/worker and the employer.

The Third Circuit ruled that Glatt is inappropriate because, among other things, an internship is a component of a course of study, whereas “interscholastic athletics are not a component of any intellectual curriculum,” among other things.
In fact, according to the plaintiffs, athletic ability may prove to be harmful to academic achievement given that sports may prevent athletes from enrolling in particular classes or pursuing challenging majors. Additionally, the court explained, volunteers expect to receive “educational or occupational benefits” that are not always apparent in employment.
Instead, the Third Circuit gave Judge Padova the task of performing an analysis of the issue’s economic realities that adhered to agency agency rules of common law ( case precedent ). To that end, Padova should find that college athletes are employees if they ( 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”.
Given Padova’s conclusions in earlier decisions, it appears really probable he will assume the athletes are employees. The NCAA could once again elegance, but if denied, the scenario would then proceed to preliminary discovery.
That would be a monumental creation. FLSA finding tends to be public-facing, a component that might incentivize the NCAA—which is in the process of settling House v. NCAA and another competitive litigations—to try to cut a bargain.
To that point, FLSA finding means school officials, coaches and team will need to discuss various materials —such as time sheets, training schedules and on-field activities notes—related to performer function and answer questions under oath about those topics. While some vital pieces of evidence, including Television and registration contracts, have been redacted in competitive litigation against the NCAA, FLSA cases are more about common aspects of work, not personal.
Further complicating matters for colleges will be the Family Education Rights and Privacy Act ( FERPA ) requirements for them to receive notice. Colleges will likely need to inform prospective students who have played sports that they are interested in a proposed class action.
Johnson v. NCAA could take years to play out. The NCAA receiving an interlocutory appeal in December 2021, which means an appeal of a case before it is decided (typically appellate courts only review cases after final judgment at the trial court level ). The Third Circuit only reviewed the case at an early stage. The plaintiffs ask for a jury trial, the outcome of which may be appealed back to the Third Circuit. Still, the returns thus far for the NCAA are not promising.
To that point, Padova has thus far found the NCAA’s legal arguments unpersuasive. In the case of Glatt student interns, the judge has emphasized that the term “employer” should be interpreted broadly by the law and that players must demonstrate that they are school employees under the “primary beneficiaries” multi-factor test. Padova has noted, among other employment-like characteristics, that players submit timesheets like their work-study classmates and perform labor for a multibillion-dollar industry.
The Third Circuit’s ruling is in contrast to decisions in two other circuits. The Seventh Circuit ( Berger v. NCAA, 2016 ) and Ninth Circuit ( Dawson v. NCAA, 2019 ) rejected claims college athletes were FLSA employees. Given that the NCAA aims to have uniform rules across the country, the conflict between these circuits is problematic. Given that the outcome will affect hundreds of thousands of former and current college athletes, the conflict might eventually persuade the U.S. Supreme Court to take the matter into account.
The Third Circuit acknowledged the Berger and Dawson holdings, but it did not agree with them. For one, the court disagreed with the Seventh Circuit’s” comparison of college athletes to prisoners and refuse to equate a prisoner’s involuntary servitude”.
The Third Circuit also stressed that times—and legal precedent—have changed since the 2010s. The court cited the Supreme Court’s ruling in NCAA v. Alston, which argued that” circular arguments” against college athlete employment” no longer hold the weight they once did” and that colleges conspiring to limit education-related expenses for athletes were found to be in violation of antitrust laws. The Third Circuit also emphasized that the National Labor Relations Board has” for the first time” adopted the notion that college athletes are employees for the purposes of the NLRA.
The players ‘ attorney, Michael Willemin, a partner at Wigdor, expressed in a statement that his organization is “pleased that today’s decision confirmed the fundamental tenet of the lower court’s determination, which is that student athletes may be employees who are entitled to the protections of the FLSA.”
They “look forward to continuing to prosecute the action and ultimately demonstrating that student athletes are actually employees,” he continued.
Johnson is just one of the many initiatives to make college athletes recognized as employees. A regional director for the NLRB discovered earlier this year that Dartmouth College men’s basketball players were employees within the meaning of the NLRA. Then, the players organized ( the university is pursuing an appeal ). In addition, a Los Angeles administrative law judge is looking into whether USC football players and men’s and women’s basketball players are employees under the terms of the NLRA.
( This article has been updated with a statement from Michael Willemin, an attorney for the players. )