NCAA Granted Quick Review of College Athlete Employee Ruling

Whether NCAA Division I student athletes are employees of the colleges and universities they attend, entitling them to pay under the Fair Labor Standards Act, will be decided by the Third Ciruit.

It granted the NCAA permission to appeal the issue Thursday after the U.S. District Court for the Eastern District of Pennsylvania green lighted the NCAA’s motion for immediate appeal after previously rejecting it.

The trial court ruled in September that the students could pursue their FLSA claims against the National Collegiate Athletic Association because they plausibly alleged it, along with their schools, is their joint employer.

The NCAA moved for immediate appeal to the U.S. Court of Appeals for the Third Circuit, which the trial court denied Dec. 28, 2021.

The NCAA filed a motion to reconsider Jan. 10, arguing that the trial court erred when it found immediate appeal inappropriate because whether the NCAA is a joint employer involves mixed questions of law and fact.

Immediate appeal is warranted because the Third Circuit hasn’t spoken on the issue and the decision diverges from rulings of the Seventh and Ninth circuits, which have held that the NCAA isn’t a joint employer of student athletes under the FLSA, the NCAA said.

In reaching its joint employer decision, the Eastern District of Pennsylvania said the athletes showed the NCAA exercises significant control over the hiring and firing of student athletes, that it has the authority to promulgate work rules and assignments and set conditions of employment, that it is involved in the day-to-day supervision of student athletes, and that it controls records of student athletes.

The plaintiffs are current and former student-athletes who attended and played collegiate sports for Villanova University, Fordham University, Sacred Heart University, Cornell University, and Lafayette College.

P.L. McDonald Law LLC and Wigdor LLP represent the plaintiffs. Constangy, Brooks, Smith & Prophete LLP represents the NCAA.

The case is Johnson v. NCAA, 3d Cir., No. 22-08003, 2/3/22.