Johnson v. NCAA May Be the Answer for What Ails College Athletics

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Having spoken with hundreds of former and current college football players over the past ten years, I am always struck by just how hard they work. This article on Penn State University quarterback Drew Allar appeared in early October of this year and is a good representation of the college athlete work ethic. Buried in the Allar profile was this anecdote: “Allar spends little time on campus during the football season. He takes one online class and otherwise estimates that he’s in the Lasch Football Building for about 14 hours per day, arriving as early as 6 a.m. As a result, he hasn’t taken the campus pulse regarding Penn State’s season.”

This leads to an obvious question: is Drew Allar an employee of his school and/or the Big Ten conference? As I explained in my first newsletter on the future of college athletes as employees, unionization and collective bargaining, the NCAA continues to lobby for a federal law which would say that someone like Allar is not an employee despite his 70+ hour work week. NCAA administrators and lobbyists continue to assert this despite the fact that football players at Allar’s level are now reaping revenue sharing monies paid directly from their schools.

Attorney Paul McDonald would look at a case like Allar’s and say he is obviously an employee. This is precisely why McDonald and his co-counsel Wigdor LLP, back in 2019, brought the court case Johnson v. NCAA seeking to classify all Division I college athletes as employees. McDonald and Wigdor LLP won a procedural motion in the case last year and it continues to wind its way through the courts. Here is an excellent primer on the case and where it stands today — I urge everyone to give it a read as it is one of the best explainers I’ve read to date.

What stands out to me in this article, and from following the case since 2019, is that the plaintiffs will likely prevail. As the article asserts, the plaintiffs must prove a four-prong test as to whether Division I college athletes are employees: they must “(a) perform services for another party, (b) necessarily and primarily for the [other party’s] benefit, (c) under that party’s control or right of control, and (d) in return for express or implied compensation or in-kind benefits.” Now that at least some college athletes are receiving revenue sharing compensation from their schools it seems inevitable that at least these athletes meet this test and will be declared employees.

As such, it would make sense for the NCAA to get out ahead of the decision and at least recognize revenue-sharing athletes as employees. Rather than continuing the fight on this issue in Congress and the courts — in the same way they did with denying college athletes their NIL rights — the NCAA, the conferences and the schools should see the Johnson case and athletes as employees as a blessing in disguise. Rather than something which will bring about the downfall of college athletics, recognizing athletes as employees will help fix what is ailing the industry. There are three ways this would be the case:

1. The Johnson case is actually making a limited case for Fair Labor Standards Act (FLSA) employment classification and, as such, is a good compromise which reflects common sense. As McDonald often says in public, this is the same classification as student work-study employees currently have. So, it only makes sense that if a work-study undergraduate student selling popcorn at a football game is an FLSA employee, so must be the players who make that job possible. Indeed, the NCAA makes athletes fill out time sheets every week just like work-study students. Thus, it only makes common sense that these athletes should be entitled to FLSA employee protections like minimum wage, overtime pay and workers compensation. Worker’s compensation, in particular, would work to limit the prevalence of health and safety lawsuits within college athletes. Moreover, FLSA employment is exempt from Social Security and Medicare taxation and many work-study students are already on scholarship without taxing those scholarships as employee benefits. Such a framework would work well for college athletes and would limit the taxation exposure for the employer.

2. An employer-employee based relationship would allow for greater equality between male and female college athletes. Should the Johnson case be successful in having all Division I college athletes classified as employees, this might go a long way to solving some of the current angst around athlete compensation. In a new post-Johnson framework, all male and female college athletes would get a base wage as opposed to some women athletes (and some men in non-revenue-generating sports) getting no money (as is happening now). Instead, all would get a base wage with those in revenue-generating sports like football getting additional revenue-sharing payments. Everyone would, of course, also be able to monetize their NIL with external brand deals.

3. Although FLSA employment classification does not necessarily bring with it the right to organize a union like National Labor Relations Act (NLRA) employment classification, it is a definite step towards recognizing that college athletes also have collective bargaining rights. Indeed, many work-study undergraduate employees in the United States are in unions. Given that many industry stakeholders have declared that collective bargaining with at least some college athletes makes sense, FLSA employment classification provided by Johnson should be enough to get us to that. By engaging in collective bargaining, players could then secure guaranteed employment contracts; protections from being “run off” their team by coaches who push them into the transfer portal; health and safety protections including the right to independent medical care; input into their off-season and practice environment; and input into their overall revenue share. In other words, they could bargain for everything outlined in our CFBPA Platform for Change. Administrators and coaches would get the stability and sustainability provided by collective bargaining agreements which were negotiated with the players and thus not subject to endless lawsuits and legal challenges.

Such a solution would be a win for all involved and would create a functioning college athletics environment which would be sustainable over the long haul. It’s probably too much to hope that the NCAA gets ahead of the curve on the question of college athletes as employees and so players themselves are likely going to need to get organized to start the process. If you are a past, present or future college football player who wants to get started on this process, I urge you to become a member today.