How Big Ten Expansion Helps Make My Case for Athletes as Employees

·6 min read

Today’s guest columnist is Prof. Michael H. LeRoy of the University of Illinois.

The Big Ten conference and its schools are drooling at the imminent prospect of signing a $1 billion-plus media deal, one certainly made more lucrative by the addition of UCLA and USC, which was itself a move to counter the SEC’s addition of Texas and Oklahoma. Both conferences are preparing for a world where only the financially strongest will thrive.

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Yet while the new “Power Two” conferences crow over their newfound wealth, the SEC is arguing incongruously to a federal appeals court in Philadelphia that its athletes are merely amateurs who would bankrupt them if they were ever paid. The lawsuit, Johnson v. NCAA, is headed by a Villanova football player, Ralph (Trey) Johnson, who is seeking back pay for minimum wage and overtime while he was under the direction and control of his coaches, trainers and related athletic staff.

This case frightens even the wealthiest NCAA programs. As reported recently in Sportico, the SEC’s friend-of-the-court brief argues that college athletics “should be categorized as an extracurricular educational activity,” not employment. This mega-conference contends that “schools paying athletes a work-study wage would be cost prohibitive.”

Based on my current research project, I’ve been at work on my own amicus brief in support of college athletes, attempting to exhibit ways in which courts should rule that they are employees.

As I approached my submission deadline last week, I’ve been in rapid revision mode, trying to incorporate the latest upheavals in a college-sports system that is being shaken to its core. Thanks to the USC-UCLA defection to the Big Ten, the role of travel has suddenly become a major issue. I recently amended my brief to point out how this transcontinental conference exposes the hypocrisy surrounding the NCAA’s amateur athletics model, creating more hardships for students in science majors that intensively require lab or field work, as well as students in fine arts, speech and hearing, psychology and education, who often have similar out-of-classroom commitments.

There’s no doubt that athletes will be discouraged from freely choosing a major based on their intellectual interest and will gravitate to degree programs that are more portable.

Beyond that, the Big Ten expansion has forced me to revise my brief to focus on a term called “compensable time” under the Fair Labor Standards Act. Under the FLSA, games such as a Penn State-UCLA contest are “principal activities.” Travel times to and from games are called “preliminary” and “postliminary” activities that are “indispensable” to the principal activity.

Therefore, the FLSA clock begins to run from the moment that athletes report to the bus that will take them to a jet, plus other travel out to the event in California—and back.

The travel observations are built atop the rest of the brief, which is remarkably simple. I am telling the court that it must answer two basic questions.

First, what is the definition of “work” and “employment” under the FLSA?

These answers are drawn from a 1944 Supreme Court decision, where the Supreme Court used Webster’s Dictionary to describe “work or employment” under the FLSA as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.”

By simply referring to the NCAA’s rules that meticulously cover the hours and activities of college players, it is readily apparent that these are work rules, not amateur rules—and therefore, the work performed by college athletes for the benefit of their schools is compensable “work” and “employment” under the FLSA.

What else could these athletes be if not employees? Independent contractors, along the lines of gig workers in ride-sharing, courier services, and other settings.

I’m arguing that NCAA athletes are “misclassified”—the term that courts use in gig-work cases—except that these athletes are classified not as independent contractors, but with a fungible term called “student athletes” (meaning amateurs).

Furthermore, I contend in my brief that “the only obstacle to finding that college athletes ‘work’ and engage in ‘exertion’ under the FLSA is the NCAA’s definitional wizardry in mischaracterizing collegiate athletic labor as amateur.”

Besides Webster’s Dictionary, courts have used a more refined, six-point test to figure out if a someone who renders labor is an employee. That’s the basis of the second major question in my brief: whether this six-factor court test applies to college athletes, and whether the athlete plaintiffs can meet at least three of the six factors needed to be deemed employees.

To that end, the NCAA’s encyclopedic manual of rules provides clear evidence of an employment relationship. Athletes are under the control of coaches—a clear point in favor of employment.

The SEC argues it is comprised of educational institutions—true, to a point—but they are also engaged in the business of peddling pro-quality sports programming.

This relates to the second key part of the test: whether the work is integral to the business. Can anyone imagine the University of Alabama without football to enhance fund-raising and student recruitment?

A third factor in the court test: Independent contractors buy their own equipment, but in an employment relationship, equipment is provided to the worker. I use Penn State University’s 2021 NCAA Financial Report to show how much a major sports program pays to equip its athletes (here, $3,247,919).

Because the court’s jurisdiction extends to Pennsylvania schools, my brief asks the court to imagine Penn State without “white-out” football games that draw more than 100,000 spectators, and their concomitant commercial activity.

I then include a photo of the 2022 intramural champions from Duquesne University, another Pennsylvania school. This is amateur college sports—and Penn State has this, too.

As my brief states, “The NCAA would have this Court believe that there is no difference between intramural sports, club sports, and NCAA competitions that generate lucrative media deals.”

My hope is that the court will see this lawsuit through the lens of so many similar “misclassification” cases and let Trey Johnson proceed with formal discovery to make his arguments before the trial court.

Despite the recent events-driven revisions, my brief’s conclusion remains the same: “NCAA athletes who earn a college degree are no less employees than classmates are employees of their schools while they work as resident advisors, campus tour guides, teaching assistants and cafeteria cashiers in jobs that fall under the FLSA.”

LeRoy has published multiple law review articles on college sports, as well as the book, Collective Bargaining in Sports & Entertainment: Professional Skills and Business Strategies.

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