The past two years have brought important legal changes to the intercollegiate sports industry, with the U.S. Supreme Court striking down aspects of the NCAA’s bylaws that prevented colleges from providing unlimited educational benefits to their athletes and state legislatures passing new laws to ensure that college athletes enjoy the legal right to endorse products for money. These recent changes to the economic system of college sports have now heralded broader change in legal policy pertaining to the classification of college athletes. At present, the U.S. Court of Appeals for the Third Circuit is reviewing, on interlocutory appeal, the question of whether certain NCAA Division I college athletes may constitute employees for purposes of the Fair Labor Standards Act. In addition, on December 15, 2022, the National Labor Relations Board instructed its Los Angeles branch to move forward in pursuing an unfair labor practice charge against the University of Southern California, the Pac-12 Conference, and the NCAA for engaging in the ongoing misclassification of their college football and basketball players as mere “student-athletes.”
This Article provides an in-depth and contemporary analysis of college athletes’ employment status under both federal labor and employment law. It concludes by asserting that while the NCAA and its member institutions may be correct that certain college athletes fail to fall within the legal definition of employees, other college athletes, especially those in revenue-generating sports, fall clearly within the legal definition. The Article further provides guidance as to determining what types of college athletes constitute bona fide employees, as well as what entity, or entities, would constitute the employers of these employee-athletes.
* Professor of Law, Baruch College, Zicklin School of Business, City University of New York; Director of Sports Ethics, Robert Zicklin Center for Corporate Integrity.
** Visiting Professor of Law, Harvard Law School; Professor of Law, Director of the Sports and Entertainment Law Institute, University of New Hampshire Franklin Pierce School of Law.
*** Associate Professor, Spears School of Business, Oklahoma State University.
The full text of this Article is available to download as a PDF.