{"id":7778,"date":"2024-08-06T11:05:44","date_gmt":"2024-08-06T15:05:44","guid":{"rendered":"https:\/\/employerdefensereport.com\/?p=7778"},"modified":"2026-07-13T10:53:14","modified_gmt":"2026-07-13T14:53:14","slug":"some-athletes-say-show-me-the-money-and-a-union-third-circuit-and-nlrb-general-counsel-lead-the-way","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/employer-defense-report\/some-athletes-say-show-me-the-money-and-a-union-third-circuit-and-nlrb-general-counsel-lead-the-way\/","title":{"rendered":"Some Athletes Say “Show Me the Money” and a Union Third Circuit and NLRB General Counsel Lead the Way"},"content":{"rendered":"

Some college athletes are demanding “show me the money!” <\/em>in a way that could upend how we understand college athletics, how certain college sports programs are managed outside of institutional rules, policies, and procedures, and the relationship between college athletes and the institutions and professionals responsible for their education, training, and development.<\/p>\n

\"Shutterstock<\/a>Recently, the Third Circuit held in Johnson v. NCAA<\/em> that college athletes at NCAA member schools were not precluded from bringing a suit under the Fair Labor Standards Act (FLSA) and may be employees under the Act when applying traditional agency principles. Specifically, the court held that college athletes may be employees under the FLSA when they (a) perform services for another, (b) necessarily and primarily for that party\u2019s benefit, (c) under that party\u2019s control, and (d) in return for express or implied compensation or in-kind benefits.<\/p>\n

The Johnson <\/em>decision is a significant blow to history, precedent, and tradition of college sports that is already fracturing under the pressure of shifting attitudes about work, amateurism in college sports, compensation, and health and safety as well as efforts at the federal level to classify certain college athletes as employees under the FLSA and the National Labor Relations Act (NLRA).<\/p>\n

How Did We Get Here?<\/strong><\/p>\n

In 2019, several athletes at Division I member schools filed a complaint against the NCAA and their respective schools asserting violations of FLSA and several state wage laws.\u00a0 The athletes asserted that they are entitled to federal minimum wage compensation for the time that they spend representing their schools in sports activities.\u00a0 \u00a0The NCAA and member schools filed a motion to dismiss pointing to history and asserting that the athletes are amateurs and not employees.<\/p>\n

The court flatly rejected the \u201camateurism\u201d defense, suggesting that the concept is a fiction created to \u201c\u2018obfuscate the nature of the legal relationship of a growing commercial enterprise\u2019.\u201d\u00a0 Likewise, the court rejected the Glatt<\/em> test applied by the district court to determine employee status under the FLSA.\u00a0 That test examines whether the putative employee or employer is the primary beneficiary of the relationship.\u00a0 Consequently, the court remanded the case for further analysis under traditional agency principles, which the court deemed more appropriate.<\/p>\n

The court\u2019s rationale for rejecting the Glatt<\/em> test was that it had been applied to cases to determine the employee status of interns and independent contractors. \u00a0The court stated those cases are not sufficiently analogous because \u201cthe work performed during properly designed unpaid internships \u2018can greatly benefit interns,\u2019 as \u2018the intern enters into the relationship with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment\u2019.\u201d<\/p>\n

Instead, looking to the NLRB\u2019s decision in Columbia University<\/em>, which \u2013 applying traditional agency principles – held that graduate student assistants are employees under the NLRA, the court stated that the posture of the plaintiff college athletes was more analogous to graduate student assistants.\u00a0 Specifically, it noted, \u201clike the athlete, the graduate student is enrolled in college or university. Like the college athlete, the graduate student\u2019s tuition is often covered by the institution as a recruitment incentive. Also similar to the college athlete, the graduate student sometimes performs work for the institution that involves little educational value or direct connection to a course of study.\u201d<\/p>\n

This Decision is about Labor Policy as Much as it is About Wages <\/strong><\/p>\n

While the Johnson<\/em> court decided whether college athletes may be employees under the FLSA, the decision has implications that reach beyond the FLSA and touch the NLRA.\u00a0 First, the court specifically noted, that the \u201cNLRA and FLSA have distinct policy goals, but their shared history often inspires courts to draw interchangeably from each statute\u2019s caselaw to answer fundamental questions related to the equitable regulation of the American workplace.\u201d<\/p>\n

Second, the court noted that \u201cthe National Labor Relations Board . . .\u00a0 is for the first time taking the position that college athletes are employees for purposes of the National Labor Relations Act.\u201d\u00a0 Third, the court cited the NLRB\u2019s Columbia University<\/em> decision as well as the NLRB General Counsel Memorandum Employee Status of Players at Academic Institutions<\/em> in support of its conclusion that the traditional agency test is more appropriate than the Glatt <\/em>test to determine employee status of college athletes.<\/p>\n

Finally, the court noted that \u2013 although not officially decided by the NLRB \u2013 its decision makers in the regional offices are already applying agency principles to find that college students are athletes under the NLRA, as demonstrated by the processing of a union petition to represent college basketball players at Dartmouth and a subsequent NLRB election.<\/p>\n

Big Picture Takeaways<\/strong><\/p>\n