Student-Athlete Employment Resources
Find out more about case law and regulatory actions around the country that could significantly impact campus and the transformation of college sports as we know it.
Tracking Student-Athlete Employment Litigation and Legislation
In 2021, the Supreme Court determined that the NCAA was subject to Sherman Act antitrust laws in Alston v. NCAA and changed the landscape of amateurism. Since Alston, the move from "student-athlete" to "student-athlete-employee" has gained momentum, and pending litigation and legislation may transform college sports as we know it. It started with NIL, but now we see a push for unionization, revenue sharing, and employment status – all areas that will be discussed and litigated now and into the future. But where are we now?
Federal Litigation
Key Cases Related to Antitrust Challenges
State of Ohio et al v. National Collegiate Athletic Association, Case No. 1:23-cv-00100-JPB (N.D. W.Va.)
Fast facts: Attorney Generals from seven states (Ohio, Colorado, Illinois, New York, North Carolina, Tennessee, and West Virginia) filed suit against the NCAA, alleging that the NCAA’s transfer rule that requires athletes to sit out a year after their second transfer (Bylaw 14.5.5.1), violates antitrust laws. The states argue that the bylaw restrains the ability of athletes to engage in the market for their labor as NCAA Division I athletes and seeks declaratory and injunctive relief.
Status: Ongoing. A hearing on the TRO is set for December 13, 2023.
Carter v. The National Collegiate Athletic Association, Case No. 4:23-cv-06325 (N.D. Cal.)
Fast facts: On December 7, 2023, three athletes filed a complaint against the NCAA and athletic conferences, claiming that the NCAA’s rules prohibiting “pay for play” violate antitrust laws. The athletes seek damages for payments they would have received had the NCAA rules prohibiting “pay for play” not been in place.
Notables: The plaintiff athletes have the same attorneys as the plaintiffs in In re College Athlete NIL Litigation and Alston. Further, the complaint references NCAA President Charlie Baker’s proposal of a new division permitting a school to have NIL deal directly with athletes and give money to athletes through a trust fund.
Status: Ongoing. The complaint is filed.
In re College Athlete NIL Litigation Case No. 4:20-cv-03919 (N.D. Cal.)
Fast facts: On June 15, 2020, former and current athletes filed a lawsuit against the NCAA seeking to recover damages for being prohibited from profiting off of NIL prior to the NCAA’s interim NIL policy (essentially “backpay” in NIL monies). The plaintiffs argue that the NCAA has continuously placed unreasonable restraints on trade, including how the NCAA still prohibits schools from compensating athletes for using their NIL and prohibits athletes from receiving NIL compensation based on athletic performance. The plaintiffs are seeking (1) an injunction to keep the NCAA and member institutions from placing restrictions on NIL activity and prohibiting revenue sharing and (2) damages for those deprived of the opportunity to receive NIL compensation.
Class Action: Granted.
Status: On November 3, 2023, the court granted class certification as to an injunctive class and three damages classes, which consist of more than 184,000 athletes who have played at the NCAA Division I level since 2019. which is worth potentially more than $1 billion. Trial is scheduled for January 2025.
Hubbard et al v. The National Collegiate Athletic Association, et al. Case No. 4:23-cv-01593 (N.D. Cal.)
Fast facts: On April 4, 2023, two former college athletes filed a lawsuit against the NCAA and other athletic conferences seeking to recover damages for being prohibited from receiving Alston awards while they attended college (essentially “backpay” in Alston awards). Following Alston, schools can award educational-related benefits up to $5,980 annually – known as Alston awards.
Class Action Potential: Yes, there is potential to impact all current and former NCAA athletes who competed in a Division I program and meet certain academic requirements between April 1, 2019, and the date of class certification.
Status: The case is ongoing and in the discovery phase. The NCAA and conferences filed answers to the complaint in June 2023.
Choh et al. v. Brown University et al. Case No. 3:23-cv-00305-AWT (D. Conn)
Fast facts: On March 7, 2023, a former and a current Brown University men’s and women’s basketball player filed suit against Brown University, the Ivy League, and other Ivy League institutions for antitrust violations. The Plaintiffs allege that the Ivy League’s decision not to provide athletic scholarships to their Division I athletes – known as the “Ivy League Agreement” – is an illegal price-fixing scheme in violation of the Sherman Act.
Class Action Potential: Yes, there is potential to impact all Ivy League institutions – approximately 10,000 former students who had been recruited to one of the Ivy League schools since 2019.
Status: Ongoing. The Ivy League and member schools filed a Motion to Dismiss the action for failure to state a claim on May 15, 2023, and the athletes filed a response on June 29, 2023, opposing the motion. Defendants filed a reply on July 27, 2023. While waiting for the judge to rule on the Motion to Dismiss, there have been numerous discovery orders – the latest on August 4, 2023, requiring the Ivy League to release to student aid (FAFSA) data.
O’Bannon v. NCAA, 802 F. 3d 1049 (2015)
Fast facts: Former UCLA basketball player Ed O’Bannon saw himself depicted in a college basketball video game. He never consented to the use of his image and likeness for the video game, nor was he ever compensated for it. O’Bannon sued the NCAA and Collegiate Licensing Company (EA Sports), alleging that use of college athletes NIL without compensation was an antitrust violation of the Section 1 of the Sherman Act, 15 U.S.C. § 1.
Finding: The court held that NCAA regulations were subject to antitrust laws. As a result, the NCAA was not allowed to prohibit student-athletes from receiving scholarships up to the full cost of attendance and up to $5,000 per year in deferred compensation to be held in trust.
NCAA v. Alston et al., 141 S. Ct. 2141 (2021)
Fast facts: Former athletes filed a lawsuit against the NCAA, alleging that the NCAA’s amateurism rules prohibiting student-athlete compensation demonstrated anticompetitive price-fixing, violating Section 1 of the Sherman Act. The Court conducted a full rule-of-reason analysis to determine whether the NCAA’s regulations violated the Sherman Act.
Finding: The Court concluded that the NCAA and its member institutions are subject to the Sherman Act and that the NCAA’s rules limiting education-related compensation unreasonably restrained trade. Post-Alston, schools can now award an athlete up to $5,980 in education-related benefits annually.
Key Cases Related to Employee Challenges (FLSA)
Johnson, et al v. NCAA, et al. Case No. 2:19-cv-05230-JP (E.D. Penn.)
Fast facts: On November 6, 2019, former and current Division I athletes are suing the schools they attended and the NCAA. They are seeking wages for their participation in Division I athletics under the FLSA and various state laws. The athletes argue that they were employees in part because of the control the NCAA and the universities held (and hold) over their activities and the revenue generated by their sports.
Status: Ongoing and awaiting decision from the Third Circuit. The schools and the NCAA moved to dismiss the complaint, but the District Court denied the motion and held that the athletes “plausibly allege[d]” that they were employees. Unhappy, the schools and the NCAA appealed the District Court’s decision, arguing, among other things, that the District Court improperly disregarded the 7th Circuit Court’s ruling in Berger and improperly applied and weighed elements of the multifactor test used to evaluate the status of student interns. At the hearing in February 2023, the Judges asked about issues around employment status and Title IX, control institutions exercise over athletes, and scholarships. See more on this case here.
Dawson v. NCAA, 932 F.3d 905 (9th Cir. 2019)
Fast facts: A former University of Southern California (USC) football player, filed a class action against the NCAA and Pac-12 conference, alleging that both entities should be considered employers under the Fair Labor Standards Act. The NCAA and Pac-12 moved to dismiss the complaint for failure to state a claim.
Finding: The court held that the NCAA and Pac-12 conference were not employers of a football student-athlete because they did not recruit him or make any decisions as to who are on rosters, nor did they supervise his schedule in practices or games. These factors supported that the NCAA and Pac-12 were regulators, not employers. Further, the court found that Dawson lacked standing to bring the class action. The court granted the Defendant’s motion to dismiss the claim.
Berger et al. v. NCAA, 843 F.3d 285 (7th Cir. 2016)
Fast facts: Former UPenn women’s track and field athletes sued the NCAA and over 120 NCAA Division I institutions, arguing that under the Fair Labor Standards Act (FLSA), athletes fit the description of “employees” and were entitled to minimum wage payments.
Finding: The court ultimately found in favor of the NCAA and the member institutions. The court reasoned that a tradition of amateurism in college athletics altered the working relationship between the “employer” and “employees.” As amateur athletes, they participated in their sports for reasons unrelated to compensation. Therefore, the court held that athletes were not employees and not entitled to minimum wage under the FLSA.
Agency Actions
National Labor Relations Board (NLRB) Complaint Against the NCAA, Pac-12 Conference, and the University of Southern California (USC)
Fast facts: In May 2023, the NLRB filed a complaint against the NCAA, Pac-12 Conference, and the University of Southern California (USC) for unfair labor practices. The NLRB is challenging the NCAA’s stance that college athletes are not employees and, therefore, should not be compensated solely for their athletic performance. The NLRB alleges that all three entities are joint employers. Notably, this complaint only applies to football and men’s and women’s basketball athletes.
Impact: If deemed employees under the National Labor Relations Act (NLRA), those athletes can organize and collectively bargain against their respective higher education institutions.
Status: Ongoing. The NCAA, Pac-12, and USC filed separate answers opposing the NLRB’s complaint. A hearing was held on November 7, 2023.
September 2021 Memorandum issued by Jennifer A. Abruzzo, NLRB General Counsel
The NLRB General Counsel issued a memorandum providing “updated guidance regarding her position that certain Players at Academic Institutions (sometimes referred to as student-athletes), are employees under the National Labor Relations Act and, as such, are afforded all statutory protections.”
For more information, see our article: Out with student-athletes, long live Players at Academic Institutions.
Legislation
California House Bill 252, also known as The College Athlete Protection Act
This legislation was introduced in January 2023 and canceled in July 2023 at the sponsor's request. The legislation sought to require revenue-generating college athletic programs develop a trust fund that essentially pays college athletes a portion of the sports teams’ revenue. The trust fund would be withheld from the athletes until completion of their degree program. The bill also sought to create a panel of overseers to regulate how institutions provide support, education, and resources to their athletes. Under the proposed bill, athletes would receive fair market value compensation for their athletic participation. It also includes provisions for institutions to cover the medical costs for sports-related injuries and insurance, guaranteed scholarships for six years, and publicly updated information on Title IX compliance.