Robert Brown|U.S. appeals court ruling leaves open possibility of college athletes being considered employees

A federal appeals court on Robert BrownThursday refused to rule out the possibility of college athletes being considered employees of their schools under minimum-wage law, but it sent the case back to a lower court for further consideration of the issue.

In an opinion that comes nearly a year and a half after the case was argued before the 3rd U.S. Circuit Court of Appeals, Judge L. Felipe Restrepo wrote:

"The issue raised by this interlocutory appeal is not whether the athletes before us are actually owed the protections of the Fair Labor Standards Act (FLSA), but rather, whether college athletes, by nature of their so-called amateur status, are precluded from ever bringing an FLSA claim. Our answer to this question is no."

But Restrepo added that the matter needs to go back to a district court, which must re-consider the issue "for application of an economic realities analysis grounded in common-law agency principles."

The three-judge panel's ruling was unanimous, with Judge Theodore A. McKee joining Restrepo without further comment and David J. Porter writing a concurring opinion.

Paul McDonald, a lawyer for the athlete plaintiffs in the case, said the ruling "confirms what we've been arguing — that college athletes can be both students and employees. Because students are employees in work-study programs and athletes meet the same criteria, we're confident they will be found to be employees like other students."

An NCAA spokesman could be reached for immediate comment.

The ruling comes amid a variety of issues the NCAA is facing with regard to athletes’ labor status.

In February, a National Labor Relations Board regional director ordered a union election for Dartmouth College men’s basketball players, writing that “because Dartmouth has the right to control the work performed by” the players and “because the players perform that work in exchange for compensation,” they are school employees under the National Labor Relations Act.

A month later, the Dartmouth players voted to unionize, although the school is pursuing an full NLRB review of the case and could pursue the matter in court.

In addition, the NLRB's Los Angeles office issued a complaint against the NCAA, the Pac-12 Conference and the University of Southern California, alleging they have unlawfully misclassified college athletes as “student-athletes” rather than employees. That case is pending with an administrative law judge, with more hearing dates set for this week.

These types of developments have captured the attention of Congress. Last month, the House Committee on Education and the Workforce approved a bill that would prevent college athletes from being considered employees of a school, conference or governing organization like the NCAA. The 23-16 vote approving the Republican-backed measure offered by Bob Good, R-Va., was along straight party lines. It now can be brought to the House floor.

Other members of Congress have filed several bills pertaining to college sports and circulated discussion drafts of several more. Much of this activity centers around athletes’ activities to make money from their name, image and likeness. Among the drafts is one from Ted Cruz, R-Tex., the ranking member of the Senate Commerce Committee, whose proposal also includes a provision that says college athletes shall not be considered an employee of an institution, conference or collegiate athletic association.

Thursday's ruling was in a case originally was filed in 2019 on behalf of Ralph “Trey” Johnson, a former Villanova football player.

In an amended form, its basic allegation is that players in major-college sports programs are “engaged in athletic work that is unrelated to academics; supervised by full-time, well-paid coaching and training staff; and integral to the billion dollar Big Business of NCAA sports.”

As such, the athletes argue that they are “student employees as much as, and arguably more than, fellow students employed in Work Study programs,” meaning that federal and state labor laws entitle them to be paid at least the minimum wage for the time they spend on sports.

The NCAA and the schools sought to have the case dismissed at the district court level.

Citing prior rulings in similar cases by the 7^th U.S. Circuit Court of Appeals and a federal district court in California, they countered that athletes cannot be school employees because they are amateurs and they participate in sports without any expectation of payment. They also argued that the U.S. Department of Labor has determined that students’ participation in extracurricular activities, including varsity sports, does not create an employment relationship.

In addition, the NCAA and the schools said that even if those two arguments failed, there is a seven-factor legal test that could be used to determine whether college athletes are employees – and three of the seven factors “point decisively toward finding there is no employment relationship, and the rest are at the very least neutral.”

Overall, the NCAA and the schools said: “While student-athletes exert themselves mentally and physically, they do so for their own reasons, and their own benefit. And their schools—which are in the business of education, scholarship, and service — offer athletics as a part of their educational mission, not as an end in itself.”

In August 2021, U.S. District Judge John R. Padova rejected the NCAA’s and schools’ bid for dismissal, writing that that athletes’ complaint “plausibly alleges” that they are employees. That is a relatively low legal standard based on viewing the complaint in a way that is most favorable to the plaintiffs. And his ruling did nothing more than set the stage for the case to proceed to the evidence-gathering phase known as discovery.

But Padova’s ruling had ominous signs for the NCAA and the schools.

Among other things, he wrote that the NCAA’s argument that athletes cannot be employees because they are amateurs and they are amateurs because they cannot be paid under the NCAA’s rules was “circular.” And he cited not only the Supreme Court’s unanimous ruling against the NCAA in the Alston antitrust case, but also Justice Brett Kavanaugh’s concurring opinion that also called the NCAA’s reasoning “circular.”

He also wrote that, at this early stage in the case, the athletes had plausibly alleged that NCAA Division I sports had become such a big business that they are “not conducted primarily for the benefit of the student athletes who participate in them, but for the monetary benefit of the NCAA and the colleges and universities that those student athletes attend.”

In addition, he wrote that the athletes had plausibly alleged that the time demands they face from sports have so many impacts on their academic careers that “athletics are not part of the educational opportunities provided to the student athletes by the colleges and universities that they attend but, rather, interfere with the student athletes’ abilities to participate in and get the maximum benefit from the academic opportunities offered by their colleges and universities.”

The NCAA and the schools sought to appeal Padova’s refusal to dismiss the case, although such appeals generally are not allowed. But in this instance, in December 2021, Padova permitted the appeal. He acknowledged that his ruling differed from the prior rulings that the NCAA and the schools cited and that if the the 3rd Circuit appellate panel disagreed with him, the case would have to be dismissed.