EmploYEEClassifiCationinCollEgiatEathlEtiCs labor & Employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
inthewakeofJustice kavanaugh ’ sconcurrenceof alston , renewedmomentum regardingemployee classificationincollegiate athleticssurfaced .
The debate over whether collegiate athletes are students or employees goes back as far as collegiate athletics itself . Although collegiate athletes have attempted to classify themselves as employees of their educational institutions in terms of worker ’ s compensation laws , 1 tort laws , 2 employment discrimination laws , 3 and wage and hour laws 4 in the past , those attempts were mainly unsuccessful .
Most courts traditionally classified collegiate athletes as amateurs 5 and students . 6 Collegiate sports ’ governing bodies , like the NCAA , also classified collegiate athletes as amateurs and students , limiting compensation to educational benefits like tuition or the cost of education .
However , the NCAA ’ s decadeslong compensation model came into question following the Supreme Court ’ s 2021 unanimous decision in National Collegiate Athletic Association v . Alston . 7 In his concurrence , Justice Kavanaugh relegated amateurism arguments to dicta which did not have “ bearing on whether the NCAA ’ s compensation rules are lawful .” 8 Moreover , Justice Kavanaugh noted that the “ NCAA and its member colleges were suppressing the pay of student athletes ” and that “ student athletes could potentially engage in collective bargaining .” 9
In the wake of Justice Kavanaugh ’ s concurrence in Alston , renewed momentum regarding employee classification in collegiate athletics surfaced . For example , three months after the Alston decision , in September 2021 , the National Labor Relations Board ’ s ( NLRB ) General Counsel Jennifer Abruzzo authored a memorandum taking the position that certain collegiate athletes should be classified as employees under the National Labor Relations Act ’ s broad definition of employee . Then , in December 2022 , the NLRB ’ s Los Angeles Regional Office announced it was pursuing charges of unfair labor practices against USC , the Pac-12 , and the NCAA on behalf of collegiate athletes seeking to engage in collective bargaining . Moreover , in Johnson v . NCAA , when analyzing a motion to dismiss , one district court departed from persuasive precedent and held collegiate athletes plausibly alleged they were employees under the Fair Labor Standards Act ’ s ( FLSA ) primary-beneficiary test . 10
While it remains to be seen how these cases will play out , 11 new complaints continue to be filed on behalf of collegiate athletes in their bids for employee classification . 12
1
Van Horn v . Indus . Acc . Comm ’ n , 219 Cal . App . 2d 457 , 465 , 33 Cal . Rptr . 169 ( 1963 ), superseded by statute .
2
Townsend v . State of California , 191 Cal . App . 3d 1530 , 237 Cal . Rptr . 146 ( 1987 ).
3
Shephard v . Loyola Marymount Univ ., 102 Cal . App . 4th 837 , 842 – 44 , 125 Cal . Rptr . 2d 829 ( 2002 ).
4
See e . g . Berger v . NCAA , 843 F . 3d 285 ( 7th Circuit 2016 ).
5
See e . g ., NCAA v . Board of Regents of Univ . of Oklahoma , 468 U . S . 85 ( 1984 ). 6
See e . g ., Chalenor v . Univ . of N . Dakota , 142 F . Supp . 2d 1154 , 1159 ( D . N . D . 2000 ), aff ' d , 291 F . 3d 1042 ( 8th Cir . 2002 ) ( Title IX ).
7
141 S . Ct . 2141 ( 2021 ).
8
Id . at 2167 ( Kavanaugh , J ., concurring ).
9
Id . at 2168 .
10
556 F . Supp . 3d 491 ( E . D . Pa . 2021 ).
11
For example , the issue of employee classification under the FLSA is on appeal . Johnson v . NCAA , 2021 WL 6125095 , at * 1 ( E . D . Pa . Dec . 28 , 2021 ) ( granting motion to certify interlocutory appeal ).
12
See e . g ., Univ . of S . Cal ., N . L . R . B .
Reg ’ l Dir ., Case 31-CA-290326 ( May 18 , 2023 ).
Author : Adria Lynn Silvia – Sass Law Firm
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