Johnson v. NCAA: Can College Athletes Be Employees?

Timeline

1. 2019Athletes file the suit in the Eastern District of Pennsylvania.
2. Aug 25, 2021The district court denies the attended schools' motion to dismiss.
3. Sep 22, 2021The court dismisses claims against schools the plaintiffs did not attend but keeps the NCAA in the case.
4. Dec 28, 2021The court certifies the employee question for interlocutory appeal.
5. Feb 15, 2023The Third Circuit hears argument.
6. Jul 11, 2024The Third Circuit holds that athletes may be employees under the FLSA and remands.
7. Feb 14, 2025The NLRB acting general counsel rescinds memo GC 21-08 on student athletes.
8. Jul 2025An executive order directs the Labor Department and NLRB to clarify athletes' status.
9. Feb 2026The defendants tell the court they have no interest in a settlement conference.
10. Apr 2026The court dismisses Sacred Heart, Notre Dame and Duke from the suit.

The ethical issues

• Amateurism as a justification for not paying athletes.
• Distinguishing recreation from work.
• Athletes' time and academic costs.
• Implications of employee status for scholarships and Title IX.
• Who benefits from athletes' labor.

Stakeholders

Stakeholder	Interests & obligations
College athletes	Fair compensation and legal protections.
The NCAA and schools	Their model and costs.
Athletes in non-revenue sports	Opportunities that might be cut.
Courts and regulators	Applying labor law consistently.
Fans and broadcasters	The future of college sports.

The case

Athletes at private and semi-public Division I schools sued the NCAA and member schools, claiming they were entitled to minimum wage under the Fair Labor Standards Act (FLSA) for time spent on their sports. They also raised state wage-law claims.^[1][3] Their suit differed from the antitrust cases in House v. NCAA and the union efforts in college athlete unions: it asked whether athletes are workers under federal wage law. The lead plaintiff, Ralph “Trey” Johnson, is a former Villanova football player.^[6][7]

Background

Earlier courts had rejected similar claims. In Berger v. NCAA (2016), the Seventh Circuit wrote: “[s]imply put, student-athletic ‘play’ is not ‘work.’”^[3] The NCAA argued that athletes, “as ‘amateurs’—are not, and historically have never been, considered employees.”^[1]

The Johnson complaint described athletic life in detail. According to its allegations, as summarized by the district court, Johnson had to take part in athletic activities on weekdays from 5:45 a.m. to 11:30 a.m. at Villanova and could not take non-core classes then, including prerequisites for degree programs. Division I schools require “Countable Athletically Related Activities” (CARA), such as conditioning, practice, film review and meetings with coaches, which are recorded on timesheets under an NCAA bylaw. Athletes reported spending more than 30 hours a week on athletic activities, and football players in the top two subdivisions more than 40.^[3] The Third Circuit noted that the NCAA governs about 1,100 schools and some 500,000 athletes and has multibillion-dollar broadcast contracts.^[1]

The rules and governance

The FLSA requires covered employers to pay a minimum wage, which Sportico notes is $7.25 an hour federally, though some states and campuses set higher rates.^[6] The question was whether the Act covers athletes at all, and whether the NCAA, which writes the rules but does not enroll athletes, could be a joint employer.^[3][4]

The district court

On August 25, 2021, Judge John R. Padova denied the attended schools’ motion to dismiss. He rejected the argument that playing sports cannot be “work,” observing that athletic “play” is “work” when athletes are paid, as in professional leagues, and that “many students are ‘employed’ to do paid work, such as students who have work-study positions.”^[3] On September 22, 2021, he dismissed claims against schools the plaintiffs had not attended but denied the motion “in all respects as against the National Collegiate Athletic Association.”^[4] In December 2021, he certified for appeal the question “Whether NCAA Division I student athletes can be employees of the colleges and universities they attend for purposes of the Fair Labor Standards Act solely by virtue of their participation in interscholastic athletics.”^[5]

The Third Circuit

On July 11, 2024, the Third Circuit affirmed the denial of dismissal in part, but held that the district court had applied the wrong test. It remanded for “an economic realities analysis grounded in common-law agency principles.”^[1]

The court held “that college athletes may be employees under the FLSA when they (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.’”^[1] The touchstone, it said, is whether the relationship reveals “an economic reality that is that of an employee-employer.”^[1]

It also held that athletes “cannot be barred as a matter of law from asserting FLSA claims simply by virtue of a ‘revered tradition of amateurism.’” It declined to use a “frayed tradition” of amateurism “with such dubious history” to define athletes’ relationships with their schools, and called for a framework that distinguishes athletes who play “for predominantly recreational or noncommercial reasons from those whose play crosses the legal line into work.”^[1]

A concurring judge raised concerns about the analysis and noted unresolved factual issues; the majority responded that the trial court needed to know which law to apply.^[1]

Why the court rejected the internship test

The district court had borrowed the test from Glatt v. Fox Searchlight Pictures, a Second Circuit case about unpaid interns. Judge L. Felipe Restrepo, writing for the majority, said the test fit poorly. Glatt assumes that interns do perform work and asks whether the educational benefit outweighs it. The majority added that the benefits the schools cited as alternative pay (“increased discipline, a stronger work ethic, improved strategic thinking, time management, leadership, and goal setting skills”) “are all exactly the kinds of skills one would typically acquire in a work environment.”^[1] It noted that the National Labor Relations Board was already using common-law agency principles in the Dartmouth basketball case.^[1]

The concurrence

Judge David J. Porter concurred only in the judgment. He argued that the court should not have accepted the appeal at all, because the question was “too fact-intensive” for interlocutory review, which is reserved for pure questions of law.^[1] He agreed that the internship and contractor tests were “inapposite” and wrote that market forces, NCAA conduct and the Supreme Court’s antitrust rulings had “enervated” amateurism, so that amateurism was now “insufficient to decide cases like this one.”^[1]

His central point was that “[p]lay is not work.” The Supreme Court defines work as exertion “controlled or required by the employer and performed necessarily and primarily for the benefit of the employer.” Judge Porter noted that the dictionary the Court relied on distinguishes work “from something undertaken primarily for pleasure, sport, or immediate gratification.” An athlete in fencing, water polo, rifle, golf or skiing who is engaged in play, he wrote, falls outside the FLSA altogether.^[1] The defendants’ renewed motions on remand built on this reasoning.^[6]

Labor policy and Congress

Federal labor policy shifted while the case was on remand. In 2021 the NLRB’s general counsel had issued memo GC 21-08, on the rights of student athletes under the National Labor Relations Act. On February 14, 2025, the acting general counsel rescinded it in memo GC 25-05, along with other guidance from the previous administration.^[9] The July 2025 executive order then asked the Labor Department and the Board to clarify athletes’ status.^[8]

The two chambers of Congress have split on the question at the center of Johnson. The House SCORE Act, as introduced in July 2025, provides that “[n]o individual may be considered an employee of an institution, a conference, or an interstate intercollegiate athletic association based on the participation of such individual on a varsity sports team.”^[10] The Protect College Sports Act, which the Senate passed 77–22 on September 28, 2026, says its title “is neutral on, and does nothing to alter, employee or non-employee status for student athletes.”^[11] Roll Call reported in October 2026 that the employee question could stall the Senate bill in the House.^[12]

The docket in 2026

The case has narrowed in district court. In April 2026, Judge Padova dismissed three Division I schools named in the plaintiffs’ third amended complaint (Sacred Heart University, the University of Notre Dame and Duke University) from the putative class and collective action. The dismissal followed motions to dismiss by those schools.^[13]

Aftermath

The ruling did not declare any athlete an employee; it set the legal standard for deciding.^[1][2] On remand, the athletes argued they are “student employees,” like work-study classmates who take tickets or sell concessions at NCAA games. They do not seek union rights or professional contracts and seek unpaid minimum wages back to 2016.^[6][7] Drawing on the concurrence, the NCAA and schools moved to dismiss again, arguing that each athlete must plead individual circumstances, distinguishing a “heavily recruited star player” from “a walk-on,” and that activities like orchestras and student newspapers are “not compensable work.”^[6]

In February 2026, the athletes said they were open to a settlement conference “on a class basis.” The defendants replied: “None of the defendants believe a settlement conference would be helpful or productive at this time.”^[7] The NCAA said athlete leaders from all three divisions agree athletes “should not be forced into an employment model.”^[7] Tennessee athletic director Danny White, by contrast, told ESPN: “I don’t understand why everyone’s so afraid of employment status.”^[6][7]

Meanwhile, a July 2025 executive order directed the Secretary of Labor and the National Labor Relations Board to clarify “the status of collegiate athletes” in ways that “will maximize the educational benefits” of college athletics.^[8] The NCAA and power conferences lobbied Congress for a law barring employee status under the FLSA (see the SCORE Act). Front Office Sports noted that such a law might not erase claims for past misclassification, and the plaintiffs’ lawyer said he would challenge it as unconstitutional.^[7]

The core dilemma

College athletes generate value and spend long hours under their schools’ control, often at academic cost. Treating them as employees could bring wages and protections but also reshape scholarships and non-revenue sports. What makes play into work, and what follows?

Competing values

• Amateur tradition vs. economic reality.
• Fair pay vs. preserving broad opportunities.
• Education vs. athletics.
• Uniform status vs. sport-by-sport differences.

Strongest arguments

For the athletes: they perform services under control for others’ benefit and receive in-kind compensation; tradition should not exempt the NCAA from labor law.

For the NCAA: athletes are students who play for their own development; employee status could end many programs.

Middle ground: the test may treat revenue-sport athletes differently from recreational participants.

Applying the frameworks

Justice

A justice lens asks whether athletes receive a fair share of the value they create.

Rights

A rights lens focuses on athletes’ rights as workers to wages and protections.

Kantian ethics

A Kantian lens asks whether athletes are used merely as means to generate revenue and prestige.

Walk it through: the Simple Decision Model

1. Spot the issue. You are a university general counsel after the ruling. Stakeholders include athletes in all sports and the university. Less visible are future recruits. The codes are the FLSA and Title IX.
2. Gather facts. How much time and control do your programs involve? Beware assuming all sports are the same.
3. Test options. (a) Wait for further rulings. (b) Restructure demands on athletes. (c) Prepare for employee status in some sports.
4. Check codes and law. Check FLSA, state law and Title IX.
5. Decide and document. Record your analysis.
6. Communicate and follow up. Inform athletes and coaches.

What’s settled and what’s contested

• Settled: the Third Circuit’s test and its rejection of amateurism as a defense.
• Contested: which athletes meet the test; the effects on college sports; the outcome on remand.

Why this case matters

Johnson v. NCAA moved the question of athletes as workers from theory into the courts, with consequences for every college program.

Key terms

Agency

An athlete’s ability to make decisions and act independently about their body, career and voice.

Commercialization

The process of turning sport into a product and a business enterprise, with profit pressures that can compete with principle.

Distributive justice

Fairness in how scarce opportunities, resources, benefits and burdens are shared.

Stakeholders

Everyone with something at stake in a decision: athletes, coaches, parents, officials, fans, employees, sponsors, media, communities and regulators, including the less visible ones.

Myth of amateurism

The critique that athletes generate large revenues without the pay or labor protections other workers have. Tested by justice, consent and dignity.

Definitions from the Ethics Cases glossary.

Discussion questions

1. When does playing a college sport become work?
2. The court called amateurism a 'frayed tradition.' Is amateurism still a meaningful value?
3. If some athletes are employees, what happens to non-revenue sports and Title IX?
4. Should employee status depend on revenue generated or on control and time demands?

Sources

1. Johnson v. National Collegiate Athletic Association, No. 22-1223 (3d Cir. July 11, 2024) — U.S. Court of Appeals for the Third Circuit (via Justia)
2. Johnson v. National Collegiate Athletic Association (opinion page) — Justia
3. Johnson v. NCAA, No. 19-5230, Memorandum (E.D. Pa. Aug. 25, 2021) — U.S. District Court for the Eastern District of Pennsylvania (via GovInfo)
4. Johnson v. NCAA, No. 19-5230, Order (E.D. Pa. Sept. 22, 2021) — U.S. District Court for the Eastern District of Pennsylvania (via GovInfo)
5. Johnson v. NCAA, No. 19-5230, Order-Memorandum certifying interlocutory appeal (E.D. Pa. Dec. 28, 2021) — U.S. District Court for the Eastern District of Pennsylvania (via GovInfo)
6. Johnson v. NCAA: The billion dollar case on student athlete employment (Feb. 4, 2026) — Sportico
7. NCAA refuses settlement talks in athlete employment lawsuit (Feb. 11, 2026) — Front Office Sports
8. Saving College Sports (Executive Order, July 2025) — The White House
9. GC 25-05: Rescission of Certain General Counsel Memoranda (Feb. 14, 2025) — National Labor Relations Board
10. H.R. 4312 (Introduced in House), SCORE Act — U.S. Government Publishing Office (via Congress.gov)
11. S. 4668, Protect College Sports Act of 2026 (Engrossed in Senate) — U.S. Government Publishing Office (via Congress.gov)
12. Employee question could stall Senate college sports bill at midfield in House (Oct. 5, 2026) — Roll Call
13. 3 Universities Dismissed In Student Athletes' Class, Collective Wage Suit (Apr. 9, 2026) — Mealey's (LexisNexis)