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Johnson v. NCAA: Can a College Athlete Be an Employee?

The Third Circuit refused to treat amateurism as a bar to wage claims, adopting an economic-realities test that could make some college athletes employees entitled to pay under the Fair Labor Standards Act.

September 15, 2025
College athletes practicing on a field at dusk
A former Villanova player's minimum-wage claim forced the courts to ask whether athletes are workers. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

Johnson v. National Collegiate Athletic Association, 108 F.4th 163 (3d Cir. 2024), No. 22-1223, decided July 11, 2024, opened a front that NIL deals and antitrust suits had left untouched: not whether athletes can be paid, but whether they must be paid, as employees, under the Fair Labor Standards Act. Ralph “Trey” Johnson, a former Villanova football player, and a group of Division I athletes argued that the hours they devote to their sports entitle them to at least the federal minimum wage from their schools and the NCAA. The Third Circuit did not declare them employees. It did something nearly as consequential — it held that they are not categorically barred from proving they are, and it threw out the legal tradition the NCAA had used to keep the question off the table.

At a glance

  • Case: Johnson v. NCAA, 108 F.4th 163 (3d Cir. 2024), No. 22-1223
  • Decided: July 11, 2024; opinion authored for the panel by Judge L. Felipe Restrepo
  • Court below: U.S. District Court for the Eastern District of Pennsylvania, which had denied the NCAA’s motion to dismiss and certified the question for interlocutory appeal
  • Holding: College athletes may qualify as employees under the FLSA; courts must apply an economic-realities test grounded in common-law agency principles, not the Glatt “primary beneficiary” intern test, and the tradition of “amateurism” cannot by itself defeat employee status
  • Disposition: Affirmed in relevant part and remanded for application of the new test

The claim the NCAA could not dismiss

Johnson’s theory was disarmingly simple. Students who work in campus jobs — staffing the dining hall, the library, the work-study office — are paid at least minimum wage for their hours. Athletes, who often devote more time to their sport than to any campus job, are paid nothing for that labor. Johnson argued that the FLSA, a remedial statute meant to guarantee a wage floor, draws no exception for athletics, and that the “student-athlete” label is a branding choice, not a legal status that strips workers of wage protections.

The NCAA moved to dismiss on the ground that, as a matter of law, college athletes can never be employees because amateurism is the defining feature of college sports. The district court refused. Recognizing the importance and difficulty of the question, it certified the issue for immediate appellate review, sending the Third Circuit a clean legal question: can a Division I athlete ever be an FLSA employee?

Burying the “frayed tradition” defense

The Third Circuit’s most striking move was rhetorical and doctrinal at once. The NCAA’s core defense rested on a 1992 Seventh Circuit case, Berger v. NCAA, which had invoked a “revered tradition of amateurism” to reject athlete-employee claims. Judge Restrepo’s opinion declined to follow that reasoning, describing amateurism as a “frayed tradition” that cannot, standing alone, answer a statutory question Congress framed in terms of economic reality. Citing the Supreme Court’s skepticism in Alston — including Justice Kavanaugh’s observation that the NCAA cannot define its product by refusing to pay its workers — the panel held that the existence of an “amateurism” custom is not a defense to FLSA coverage.

The court was careful about what it was not deciding. It did not hold that Johnson and his co-plaintiffs are employees. It held that they are entitled to try to prove it under the correct legal standard, and that the NCAA’s categorical bar fails.

A new test built on economic realities

The decisive question became which test governs. The district court had borrowed Glatt v. Fox Searchlight Pictures, the Second Circuit’s “primary beneficiary” framework for unpaid interns, which asks whether the worker or the enterprise is the chief beneficiary of the arrangement. The Third Circuit rejected that import. Interns, the panel reasoned, participate in a structured educational exchange tied to academic credit; athletes’ relationship to their schools is not analogous, and the Glatt factors map poorly onto it.

In its place, the court articulated an economic-realities test rooted in common-law agency. College athletes may be employees under the FLSA, the panel held, when they: (a) perform services for another party; (b) necessarily and primarily for that 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. The court remanded to the district court to apply that standard to the facts — an inquiry into practice hours, the degree of athletic-department control over athletes’ schedules and conduct, the revenue athletes generate, and the scholarships and benefits they receive in return.

Open questions

The remand leaves the central factual question unresolved: will any class of Division I athletes actually satisfy the four-part test? Revenue-generating football and basketball players present a stronger case than athletes in non-revenue sports, raising the prospect of a sport-by-sport, or even school-by-school, patchwork. The decision also binds only the Third Circuit, setting up a potential split with the reasoning of Berger and inviting eventual Supreme Court review. Layered on top are unresolved interactions: if athletes are employees, how does that intersect with Title IX, with state labor law, with the tax treatment of scholarships, and with the revenue-sharing architecture emerging from the House settlement? Employee status could also reopen the door to collective bargaining — and to the labor exemption that might, paradoxically, let the NCAA negotiate compensation limits it cannot impose unilaterally.

Implications

  • Amateurism is no longer a magic word. A federal appeals court has refused to let the “student-athlete” label foreclose statutory wage claims, treating the question as one of economic reality.
  • The test is fact-intensive and divisible. Because employee status turns on control and benefit, outcomes may vary by sport, program, and revenue profile rather than applying uniformly.
  • NIL income is not wages. Johnson targets a different pocket — pay from the school for labor performed — and could obligate institutions in ways no endorsement deal does.
  • A circuit split looms. The Third Circuit’s break from Berger’s amateurism rationale heightens the odds of Supreme Court review of athlete employment status.

Frequently asked questions

Did the court rule that college athletes are employees? No. It held that they are not categorically barred from being employees and remanded for the district court to apply a new economic-realities test to the facts. Whether any plaintiffs ultimately qualify remains undecided.

How is this different from NIL deals? NIL compensation comes from third parties or collectives for the use of an athlete’s name, image, and likeness. Johnson concerns wages owed by the school or the NCAA for the labor of playing the sport — an employment relationship, not a publicity license.

What test will the lower court apply on remand? An economic-realities test grounded in common-law agency: whether athletes perform services primarily for the school’s benefit, under its control, in exchange for compensation or in-kind benefits. The court expressly rejected the Glatt “primary beneficiary” intern test.

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