The U.S. Court of Appeals for the Third Circuit rejected the NCAA’s motion to dismiss Johnson v. NCAA last week, sending the case back to district court to determine whether — and which —college athletes are employees.
Former Villanova football player Ralph “Trey” Johnson is leading a group of Division I athletes (representing football, swimming, diving, baseball, soccer, and tennis) who argue that they should be compensated at minimum wage, just like their classmates who work concessions or tickets at games where the players aren’t paid. Notably, the plaintiffs are not pushing for market rates or the right to unionize.
Johnson v. NCAA is now back in the hands of U.S. District Judge John Padova, who will apply an economic realities analysis to decide whether college athletes are employees. The Third Circuit instructed Padova to classify college athletes as 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.” Based on his previous rulings, where he noted that college athletes fill out timesheets and fuel a multibillion-dollar industry, Padova is expected to ultimately rule against the NCAA.
Last week’s Third Circuit ruling included a notable concurring opinion from Judge David Porter. He wrote that college football and basketball players likely qualify as employees, but other college athletes probably do not meet that standard. For example, Porter compared the different economic relationships between the quarterback of a Power Four football team and a bowler at a Conference USA school.
Porter criticized the majority Third Circuit opinion because it provided “no guidance about how courts or factfinders applying an economic-reality test should consider student-athlete participation in none-revenue sports. He also questioned whether non-revenue athletes are “part of the business of a college university.”
As a joint employer, the NCAA would have to cover costs of employees if individual schools cannot bear the financial burden. While pleading for a Congressional exemption from antitrust law earlier this year, new NCAA president Charlie Baker warned that a loss in the Johnson case could result in two-thirds of all college athletic teams being eliminated — a point that is disputed, however, by the plaintiffs.
“If you convert all of college sports into employment, there is simply no doubt, based on math, that you will lose an enormous number of student-athlete opportunities,” said Baker, who suggested that schools having the ability to buy athletes’ NIL rights is a better alternative than employment. “The money is just not there. Most schools lose money on sports.”
Are current college athletes/coaches in non-revenue sports like swimming creating a petition or speaking out on this ruling or just sitting by and waiting to see what happens?
House gets all the press, but this one might actually be a much bigger deal. This could lead to a world where you’re either an employed student-athlete or a member of club sport, nothing in between. If that’s the case, college swimming as we know it is done. Very few universities are going to employ swimmers.
Ive said it for the last fifteen years and I will say it again. Congress needs to amend the ASA to require schools accepting federal funds (pretty much all of them) to have a set percentage of the athletic budget to Olympic Sports. That or infuse several billion a year into the USOC per year and pass it out based upon merit.
Yep. Sadly, many cheering this on are digging their own grave. If anyone thinks that schools are going to pay an additional $5-$10 grand in wages (minimum) per athlete in wages on top of program costs for non-revenue sports you are living in delusion.