AMENDING THE FLSA: TIME FOR CONGRESS TO BREAK THE TIE AND DEFINE STUDENT ATHLETES AS EMPLOYEES

Authors

Alison Izzi

Abstract

Some may argue that waiting for Congress to legislate a solution to an issue is futile, however, in some cases, advocating for such action is the next best step forward. Therefore, it is time for Congress to break its silence on the issue of collegiate athlete employment status. Historically, the National Collegiate Athletic Association (NCAA) has relied on backing from courts and a lack of legislative regulation to maintain its monopoly over the collegiate athletics market and control over its participating student athletes. Courts have been cautious to make rulings against the NCAA, until recently. In 2021, the Supreme Court affirmed a decision in NCAA v. Alston limiting the organization’s regulatory powers under antitrust laws. However, the Supreme Court remained silent on the employment status of student athletes. Prior to this ruling, students brought civil suits in both the Seventh and Ninth Circuits, fighting for employment status under both common law tests and statutory standards to no avail. Post-Alston, a class action suit arose in the Third Circuit after the district court ruled in favor of the student athletes in Johnson v. NCAA, declaring them to be employees under the Fair Labor Standards Act (FLSA). While the Third Circuit’s ruling has yet to be delivered, it remains that the judicial branch will not conclusively resolve the issue of student athletes’ employment status regardless of the Johnson outcome. This means there is one avenue left for student athletes to seek employment status–the legislative branch.

This Note makes the policy argument that student athletes are employees under the FLSA, and further concludes that federal legislation amending the FLSA to make this clear is the logical and necessary next step. First, this piece explores the policy-based reasons on why NCAA athletes should be employees and explains why legislation is the best resolution for this group. The analysis focuses on the protections currently missing for NCAA athletes and why these protections are necessary. This Note then provides a framework for the amended language to the FLSA and provides analysis refuting arguments against legislation as a resolution. Ultimately, the analysis concludes that amending the FLSA is the proper solution to the ongoing debate on whether NCAA athletes are employees.

Recommended Citation

Alison Izzi, AMENDING THE FLSA: TIME FOR CONGRESS TO BREAK THE TIE AND DEFINE STUDENT ATHLETES AS EMPLOYEES, 47 W. New Eng. L. Rev. 306 (2025), https://digitalcommons.law.wne.edu/lawreview/vol47/iss2/7