Collegiate athletes may be considered employees in a case being heard by the Third Circuit.
The National Collegiate Athletic Association (“NCAA”) is being sued by current and former collegiate players because the NCAA failed to pay them an hourly salary. The Fair Labor Standards Act (“FLSA”) and student athletes were the subject of a hearing before the Third Circuit last week.
The Third Circuit’s current situation is not unusual. The NCAA, more than 120 NCAA Division I member schools, and college track athletes were sued in 2016 on the grounds that they were “workers” within the definition of the FLSA. The action was dismissed by the district court that had jurisdiction over it, and the Seventh Circuit agreed, stating that “student athletes are not employees under the FLSA.” Similar claims regarding minimum wage and overtime pay were made in 2019 by a collegiate football player.
Wigdor attorney Michael Willemin who represents the athletes led by Villanova’s Ralph “Trey” Johnson said, “This is a very specific case that involves student athletes who dedicate a tremendous amount of their time and are completely controlled, to the serious detriment of their academic development.”
The NCAA has complete control over student athletes, according to Willemin, including whether they can bet, criticize another school, or even choose a major whose classes might conflict with practice periods. The attorney said that students who miss practice are fired.
Before the appellate panel in Philadelphia, Steven Katz of the legal firm Constangy Brooks argued on behalf of the NCAA and the colleges identified as defendants, including Villanova, Duke, and the University of Oregon. A “minefield of unforeseeable consequences” would result from taking the matter to trial, he said.
The National Labor Relations Board, which published a memo in September 2021 stating that some student athletes may be considered employees under the National Labor Relations Act and entitled to collective bargaining, is another source of pressure on the NCAA. In addition to the courts, this body is also putting pressure on the NCAA.
Student athletes are not yet considered to be employees by the law. Although it’s uncertain what their future holds, any decision would undoubtedly have a significant impact on the collegiate athletics sector.
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