By Riley Overend on SwimSwam
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.”
Read the full story on SwimSwam: College Athletes One Step Closer to Employees After NCAA Denied Appeal in Johnson Case