Abstract
As the legal and economic premises of National Collegiate Athletic Association (NCAA) amateurism collapse, Division I college athletics has reached an inflection point: At least some scholarship athletes, especially in revenue sports, may be deemed employees. This article uses the Fair Labor Standards Act (FLSA) as the clearest vehicle for assessing what that shift would mean in practice. Antitrust litigation, name, image, and likeness reforms, and the House v. NCAA settlement have changed who can pay athletes and how; the unresolved question is whether and to what extent athletic participation will be treated as work under wage and hour laws, including how to define compensable time, calculate overtime, and design lawful compensation structures.
Drawing on the Third Circuit’s decision in Johnson v. NCAA, the article develops a workable framework for determining employee status under the FLSA, identifying the relevant employer or employers in the fragmented governance structure of college sports under joint-employment principles, and operationalizing compliance inside athletic departments that have never been built to run timekeeping and payroll for athletes. It then identifies a major downstream consequence: classifying athletes as employees helps clarify Title IX treatment of direct institutional payments by situating those payments within Title IX’s employment-compensation framework rather than the proportionality rules governing athletic financial aid.
The article concludes that athlete-employee status under the FLSA is not only doctrinally plausible but increasingly difficult to avoid given the commercial realities of modern college sports. While the compliance burdens are substantial, the employment frame offers a more legally defensible and administrable structure for athlete compensation at the moment the “student-athlete” construct can no longer do the doctrinal work the industry demands.
INTRODUCTION
As the legal scaffolding of amateurism collapses, NCAA Division I college athletics appears to be rapidly moving toward an employment model for at least some of its athletes. This article takes that shift as a starting point and focuses narrowly on the Fair Labor Standards Act (FLSA) to illustrate the legal and factual complications that arise if or when athletes are treated as employees.
Among the statutes that could shape the athlete-employment relationship, the FLSA offers the most direct vehicle for assessing what employee status would mean in practice. If athletes are covered, institutions would confront an array of compliance questions, including whether minimum wage and overtime provisions apply, how to calculate compensable hours for practice, travel, and training, and whether athletics scholarships can be credited toward wage obligations.
This article proceeds in five parts. Part I traces the collapse of the amateurism model through case law and policy shifts. Part II examines the emerging legal framework for athlete-employment status under the FLSA. Part III analyzes the fragmented structure of college sports to identify potential employers under joint-employment principles. Part IV explores the practical challenges of FLSA compliance in the athletics space, if athletes are deemed employees. Part V considers one perhaps unintended consequence of recognizing athletes as FLSA employees: reframing, and in some respects simplifying, a recurring Title IX question regarding the treatment of direct payments to male and female athletes by schools using institutional dollars in the wake of the House v. NCAA settlement agreement, as well as touches on the interplay with other employment laws and future legislative initiatives.
I. THE COLLAPSE OF AMATEURISM
For most of the last century, the NCAA’s model of amateur college athletics rested on a fundamental premise: student-athletes are students first, not employees. The very term student-athlete was coined in the 1950s as a deliberate legal defense against employee classification. Walter Byers, the NCAA’s first executive director, admitted the term was designed to offset tendencies for state agencies or other governmental departments to consider a grant-in-aid holder to be an employee.
For decades, courts and the public largely accepted the romantic idea that athletics scholarships and educational opportunity were ample compensation for a student-athlete’s participation in intercollegiate athletics and that the “revered tradition of amateurism” justified strict prohibitions on athlete pay.
However, as college sports morphed into a multibillion-dollar enterprise, the claim of amateurism began to erode. In NCAA v. Board of Regents, the Supreme Court, in dicta, famously acknowledged amateurism as defining college sports’ uniqueness. Yet by 2015, Judge Claudia Wilken observed in O’Bannon v. NCAA that the NCAA itself lacked any consistent definition of amateurism over time. Rules had evolved to allow myriad forms of compensation to athletes, undermining the principle that college athletes must remain entirely uncompensated to be eligible to participate as amateurs. The reality, according to Judge Wilken, had become that amateurism is whatever the NCAA says it is at any given moment, often carved out when convenient to preserve the college sports machine.
A watershed moment came with NCAA v. Alston. In Alston, the Supreme Court unanimously affirmed lower court decisions enjoining certain NCAA rules limiting education-related benefits on antitrust grounds. Justice Gorsuch noted that the NCAA’s reliance on earlier dicta as a broad endorsement of its authority to place restrictions on athlete compensation was misplaced, observing that college sports are a massive business fueled by lucrative multimedia contracts and enormous profits for coaches, colleges, and conferences.
In a forceful concurrence, Justice Kavanaugh went further and stated that the NCAA is not above the law. This became a rallying cry for those seeking to challenge NCAA rules, including those restricting athlete compensation.
Almost immediately, the Alston decision unleashed new challenges and reforms. In July 2021, under pressure from looming state laws and still reeling from the unanimity of the Supreme Court’s refusal to defer to its rules, the NCAA abandoned its long-standing prohibition on athletes monetizing their NIL in deals involving third parties operating separately from schools. The NIL era rapidly expanded athletes’ economic rights in the free market: college players could suddenly sign third-party endorsement deals, earn appearance fees, and otherwise profit from their fame, provided schools were not issuing the payments. Lucrative NIL deals soon became common and influenced recruitment and transfer decisions alike.
Challenges to long-held views of employment law soon followed the success of antitrust in challenging the NCAA’s position. In Johnson v. NCAA, a groundbreaking case, the Third Circuit held that college athletes could be determined to be employees of their institutions for purposes of the FLSA. The court devised a fact-specific test and rejected the NCAA’s position that the tradition of amateurism should automatically exempt athletes from coverage under employment laws. The Third Circuit noted that the once-revered tradition of amateurism was by then frayed and insufficient to categorically bar athlete-employee status.
Most recently, another decisive moment arrived with House v. NCAA. In June 2025, Judge Wilken approved a multibillion-dollar settlement resolving claims that the NCAA and major conferences had illegally suppressed athlete compensation, including revenue sharing and the use of athlete NIL. For Division I institutions that opted into the settlement, thousands of athletes will receive payments for past damages and schools are now permitted to pay their athletes directly up to a capped aggregate amount. Put directly, the NCAA has formally abandoned its ban on direct pay from schools to athletes for a class of athletes. This marks a historic pivot.
Collectively, these developments have dismantled the legal foundations of the traditional amateurism model and placed Division I athletics at a critical regulatory inflection point, particularly for institutions that have opted into the House settlement. For those institutions, it is increasingly difficult to maintain that athletes participate solely for educational or recreational purposes; the law now treats their athletic labor as economically significant within a commercial enterprise.
II. EMPLOYEE STATUS UNDER THE FLSA
When analyzing whether college athletes are employees, different bodies of law have used slightly different tests. Here, the focus is exclusively on the test under the FLSA. The FLSA is the federal law guaranteeing minimum wage and overtime pay to covered workers. It defines employee broadly and defines employ as to suffer or permit to work. Courts have long noted the breadth of this definition and look to the economic realities of the relationship.
In the context of unpaid internships or trainees, courts have developed multifactor tests to distinguish an employee from someone primarily receiving education or training. In Johnson v. NCAA, however, the Third Circuit found those traditional intern or trainee tests not sufficiently analogous to college sports and instead crafted a test tailored to the distinctive nature of NCAA athletics.
Under Johnson, college athletes may be employees under the FLSA when they perform services for another party, necessarily and primarily for that party’s benefit, under that party’s control or right of control, and in return for express or implied compensation or in-kind benefits. Each prong reflects a core aspect of an employment relationship. Notably, the test explicitly acknowledges that compensation may be in kind, a direct nod to athletic scholarships as a form of payment.
Under this framework, the strongest employee-status case is likely to involve Division I football and men’s basketball players at Power 4 institutions. These athletes plainly perform services, training, practicing, and competing for the institution while providing entertainment content that attracts spectators and lucrative media contracts. Their services are primarily for the benefit of their universities and the broader commercial enterprise, while coaches and athletic departments exercise strong influence over schedules, training, and ongoing status on the team. Athletes also receive compensation or benefits in the form of scholarships, stipends, academic support, gear, meals, and now direct payments.
Earlier decisions in other circuits reached different results, but largely without grappling with the current commercial realities. Johnson expressly rejected those approaches and treated the question of athlete pay as one of economic reality, not labels. The divergence among circuits creates the possibility of future Supreme Court review. Even without a final nationwide ruling, the shift makes it more plausible that wage-and-hour claims will survive dismissal, proceed to discovery, and create meaningful exposure for the NCAA, conferences, and member institutions.
The legal landscape has therefore shifted. Evolving practices and recent case law now indicate that the question may no longer be whether certain college athletes could be considered employees, but which athletes, for whom, and under what conditions.
III. WHO IS THE EMPLOYER? THE FRAGMENTED STRUCTURE OF COLLEGE SPORTS
Whether a university, an athletic conference, the NCAA, or even a broadcast network qualifies as an employer turns on the FLSA’s expansive conception of joint employment and the fact-intensive economic-realities inquiry courts apply in wage-and-hour cases. The statute defines an employer broadly, and courts therefore look beyond formal labels to examine the degree to which each putative employer meaningfully participates, directly or indirectly, in directing the work performed and in structuring the compensation or benefits tied to that work, and whether the entity derives more than an incidental benefit from it.
A. The University’s Role
The athlete’s university is the most obvious employer candidate. The school recruits and admits the athlete, provides the scholarship, and dictates the athlete’s day-to-day obligations through its athletic department. Coaches determine training schedules, performance standards, and ongoing status on the team. The university also provides tutoring, medical care, nutrition, and other support that reflects institutional supervision and integration. In essence, the university’s athletic department looks, acts, and benefits like the primary employer of the athlete.
B. The Conference’s Role
Less obvious, but highly significant, is the role of the athletic conference. Conferences orchestrate competition by setting season schedules, organizing championship tournaments, negotiating television contracts, and imposing additional rules or standards on member schools. Their influence on athletes’ working conditions can be substantial. A conference may not directly hire athletes or set their pay, but it can control some conditions and shares in revenue generated by the games athletes play. Under a joint-employer analysis, a conference could be found to meaningfully participate in setting how, when, and under what constraints athletes perform athletic services.
C. The NCAA’s Role
The NCAA is further removed from athletes, yet it has historically exercised sweeping control through bylaws and enforcement powers. It sets overarching rules that govern eligibility, amateur status, recruiting, practice limits, transfers, and more. The NCAA has acted as a national governing body that designed and enforced the rules that kept athletes unpaid. Even now, it continues to shape the context of athletes’ work through eligibility rules, competition structures, and governance. Although it does not issue scholarships or directly supervise day-to-day activities, its role in building and benefiting from the overall enterprise keeps it within the discussion of possible joint employment.
D. Media and Corporate Partners
A more novel question is whether media companies or major corporate partners could be deemed employers. Broadcasters pay conferences and the NCAA enormous sums for the rights to broadcast games and often influence scheduling, timing, and event formats. That influence affects athletes’ working conditions, but it is usually indirect and contractual. Absent unusual facts showing direct involvement in supervision or compensation practices, broadcaster influence is more likely to matter through contracts and risk allocation than through a successful showing that a broadcaster itself is a joint employer.
E. Parallels in Other Industries
The fragmented nature of college sports governance invites analogies to other complex work arrangements, including gig-economy platforms, franchise systems, and staffing agency models. These comparisons are illustrative only, but they reinforce a core legal principle: when multiple entities codetermine the terms of a person’s work and all benefit from it, the law can treat them as joint employers responsible for compliance.
IV. FLSA COMPLIANCE: WHAT WOULD IT LOOK LIKE?
Assume that courts mandate that college athletes are employees entitled to minimum wage and overtime under the FLSA. This part explores the practical aspects of compliance in the college sports context.
A. Work Hours Accounting
The FLSA requires employers to keep records of employee work hours and pay at least minimum wage for all hours worked, plus overtime for hours over forty in a week for nonexempt employees. For college athletes, tracking work hours would be a novel challenge because their time commitment has historically been regulated only by NCAA bylaws, not by a time clock.
The NCAA’s twenty-hour rule nominally limits countable athletically related activities, but many activities do not count toward that cap, including some weight training, conditioning, travel, rehabilitation, and supposedly voluntary workouts. In reality, athletes often devote far more than twenty hours a week to their sport. From an FLSA standpoint, many of these hours could qualify as compensable time because they are spent predominantly for the employer’s benefit and under its control.
B. Overtime and Minimum Wage Considerations
Under the FLSA, employers must pay at least the minimum wage for all hours worked, and overtime pay at one and one-half times the regular rate for hours beyond forty in a week. Most college athletes would likely be classified as nonexempt employees, meaning they are entitled to overtime pay. The result is that tracking hours is not merely administrative; it is central to determining what schools would owe.
One obvious question is whether the value of scholarships could count toward wage obligations. Under current law, tuition assistance is unlikely to qualify as a wage credit, even though scholarships may be relevant to the broader question of whether athletes receive compensation for employee-status purposes. Absent statutory or regulatory change, schools could not simply claim that scholarships satisfy minimum wage and overtime requirements. Cash wages or some other compliant compensation structure would still be required.
C. Exemptions and Special Challenges
There is no clear existing FLSA exemption that neatly fits college athletes. Seasonal amusement and recreational establishment exemptions are unlikely to apply broadly to college athletic departments, and intern or trainee analogies are of limited use given the commercial and highly supervised nature of Division I sports. The Department of Labor’s historic guidance suggesting that interscholastic athletics is generally not work was premised on assumptions about amateur sports that are increasingly difficult to sustain in the current environment.
Special challenges would include tensions between student and employee roles, the treatment of mandatory study halls or team meetings, and the implications for international athletes whose immigration status may restrict employment. These issues would require solutions beyond athletics governance alone.
D. Compliance Infrastructure
Transitioning to an employment model would require athletic departments to adopt the trappings of HR compliance used elsewhere at universities. Schools would need time-tracking systems, payroll systems, careful handling of scholarship and wage interactions, overtime management policies, and more formal onboarding, discipline, and separation practices. Employee status would materially alter how athletic departments operate, from tax withholding to wage calculations to work-authorization procedures.
V. CONSIDERATIONS AND IMPLICATIONS FOR EMPLOYEE STATUS UNDER FLSA
A. Title IX Implications of Athlete Compensation
One potential implication of recognizing athletes as employees under the FLSA is that it may reframe, and in some respects narrow, the Title IX question that surfaced after House regarding institution-funded direct payments to athletes. The settlement ushered in a new era of direct payments and revenue sharing to athletes, and because those payments disproportionately favor football and men’s basketball players, schools have faced uncertainty over whether they should be treated as athletic financial assistance subject to proportionality or as employee compensation governed by Title IX’s employment provisions.
Employee classification would strengthen the argument that institution-funded payments should be analyzed under Title IX’s compensation framework, which prohibits sex-based pay discrimination while permitting differences grounded in nonsex factors such as market dynamics or role-specific demands, rather than under scholarship-like proportional allocation rules. In that sense, recognizing athletes as employees may provide institutions with a clearer compliance path at a moment of significant uncertainty.
B. Legal and Practical Implications on Other Employment Laws
The erosion of amateurism, adoption of revenue sharing, and a determination that a student-athlete is an employee under the FLSA may also trigger renewed scrutiny of athlete employee status under other federal and state laws. Issues involving collective bargaining, work authorization, equal pay, disability and religious accommodations, unemployment, workplace safety, retirement, taxation, and more may come into play. The complexity associated with student-athlete employee status therefore extends far beyond the FLSA.
C. Federal Legislation
The implications and complexity of the end of amateurism and potential employee status highlight the need for federal legislation in this space. Various bills have been introduced to address reform of collegiate athletics, but no single bill has yet garnered sufficient support to pass. Thoughtful, comprehensive legislation will be needed to guide some of the more challenging issues associated with student-athlete employment, including consistency across states and among public and private institutions, and the applicability of multiple federal labor and employment laws.
VI. CONCLUSION
The collapse of amateurism is no longer theoretical. O’Bannon, Alston, Johnson, and most recently House have all pushed the enterprise to a tipping point. The next question is not whether college athletes will be paid but under what legal framework, and with what collateral consequences for institutions.
The FLSA provides the clearest lens for evaluating what employee status entails: minimum wage, overtime, hours tracking, payroll systems, and a host of compliance obligations. These are not trivial burdens, but they are also familiar terrain for universities that already employ thousands of students, staff, and faculty. In some respects, athlete employment could professionalize athletic departments, rationalize time commitments, and inject long-needed labor protections into a multibillion-dollar industry.
At the same time, reclassification carries ripple effects beyond wage and hour law. One perhaps unintended consequence is clarifying how Title IX applies to direct athlete compensation. Recognizing athletes as employees shifts those payments into Title IX’s compensation framework, where the rule is equal pay for equal work rather than proportional dollars across sexes in the manner used for athletic financial assistance. In that way, the FLSA analysis also functions as a potential Title IX solution, providing institutions with a clearer compliance path at a moment when uncertainty is greatest.
The transformation of the “student-athlete” into the “athlete-employee” is disruptive, but it also offers coherence. It aligns legal reality with economic reality: many athletes are workers in a commercial enterprise, and institutions are their employers. The task ahead is to design policies or legislation that honor both the rights of those athletes and the educational mission of their universities. If colleges embrace this shift with foresight, integrating FLSA compliance, clarifying Title IX obligations, and building transparent pay structures, the future of college sports can be more sustainable, equitable, and legally defensible than the amateur ideal it replaces.
