United States: From The Playing Field To The Courtroom: The State Of Current Legal Challenges Brought By Student-Athletes

As the U.S. Supreme Court stated in a 1984 decision involving the University of Oklahoma, there exists in this country a "revered tradition of amateurism in college sports." Despite this tradition, there have been an increasing number of legal challenges to the institution of amateurism in college athletics over the last few years, many of which are grounded in employment law principles.  

The U.S. Department of Labor (USDOL) has long taken the position that student involvement in interscholastic athletics, conducted primarily for the benefit of the participants as part of the educational opportunities provided to them, is not "work" and does not result in an employee-employer relationship between the student and the school or institution. However, with soaring television revenue and coaching compensation in certain sports, the issue of student-athletes as "employees" has become a hotly debated issue that has shifted to the courtroom. This article provides an overview of where many of those legal battles stand. 

Student-Athletes And The Fair Labor Standards Act (FLSA)

The cornerstone federal wage and hour statute, the FLSA, defines "employee" as "any individual employed by an employer" and defines "employ" as "to suffer or permit to work." But the FLSA does not define "work." These circular and imprecise definitions have encouraged claims by student-athletes that their "work" as athletes deserves the protections afforded by the FLSA. Thus far, these legal challenges have failed.  

For instance, in 2016, the 7th Circuit Court of Appeals rejected a bid by a group of student-athletes to pursue an FLSA collective action against the National Collegiate Athletic Association (NCAA) and 123 member schools (Berger v. National Collegiate Athletic Association). The suit was brought by several members of a university track and field team who alleged they were employees entitled to minimum wage. The student-athletes argued that their employment status should be evaluated under the USDOL's intern test, which identifies factors that private sector employers must consider in determining whether interns should be paid.  

The court rejected the argument, finding that the intern test was designed to be applied to for-profit, private sector businesses, not activities that take place in an educational setting. Turning to an "economic realities" analysis, the court found that the "revered tradition of amateurism in college sports" was an essential part of the economic reality of the relationship between students and the university, as was the fact that previous generations of students have vied to be part of that tradition with no thought of compensation. 

More recently, in April 2017, a federal court in California rejected a similar FLSA collective action claim asserted by a former linebacker who played for the University of Southern California in the case of Dawson v. National Collegiate Athletic Association. To distinguish his case from the 7th Circuit decision involving the track and field student-athletes, the former linebacker pointed out that he played Division I football which, he argued,  generated significant revenue for the NCAA. He contended the economic benefit derived from his activities made his participation similar to compensable work-study programs.  

The court disagreed, stating "the premise that revenue generation is determinative of employment status is not supported by the case law." The court relied on the 7th Circuit's track and field decision in finding no employee status. The case will likely be appealed to the 9th Circuit Court of Appeals, so we have not heard the last of this issue.

Student-Athletes And The National Labor Relations Act (NLRA)

Most in the academic world are aware of the recent attempt by a group of Northwestern University football players to organize a union for purposes of collective bargaining with their "employer." Their 2015 effort was grounded in the argument that student-athletes were "employees" entitled to protections of the NLRA. The National Labor Relations Board (NLRB) ended the debate for the time being by ruling that the purpose of federal labor laws would not be served if the players were allowed to unionize. That being said, the NLRB did not categorically reject the idea, and avoided resolving the issue of student-athlete "employee" status.

In fact, a recent memorandum from the NLRB re-ignited the debate over whether the NLRA could be applied to student-athletes. On February 2, 2017, the NLRB's General Counsel sent an Advice Memorandum to the Board's regional directors in which he stated "scholarship football players in Division I Football Bowl Subdivision private sector colleges and universities are employees" under the NLRA. The memo relies in part on the Board's recent decision in the Columbia University case, which held that graduate assistants were employees even if they were also students. He also provided a lengthy discussion of various factors he believes support the conclusion that Division I football players are "employees" under the NLRA. 

The significance of this Advice Memorandum is not entirely clear. On the one hand, it is an interpretative position of the Board's General Counsel. However, though it provides an interesting insight into his views on this issue, it is not binding precedent. Moreover, it bears noting that the General Counsel's term ends in November 2017 and there is no indication that the Trump administration is interested in championing the cause of student-athletes.

The Non-Employment Route: Antitrust Litigation

Legal claims seeking compensation for student-athletes have not been confined to challenges grounded in employment law. In February of 2017, the NCAA and 11 athletic conferences agreed to a $208.7 million settlement to compensate student-athletes for "grant-in-aid." The suit alleged student-athletes' scholarships were being suppressed through a cap on grant-in-aid benefits imposed by the NCAA and member institutions.  

The NCAA noted that the extra compensation paid to student-athletes pursuant to the settlement was consistent with Division I financial aid rules, which allow athletics-based aid up to the full cost of obtaining a college education. The NCAA further noted that the settlement "maintains cost of attendance as an appropriate dividing line between collegiate and professional sports." The settlement did not resolve all issues in the case, however, and attorneys for the student-athletes predict remaining issues will go to trial next year, involving the amount that student-athletes can be paid above the cost of attendance.

The Non-Employment Route Part 2: Tort Claims

Although institutions have been largely successful in convincing courts and agencies that student-athletes are not employees, the resulting unintended consequence is they are now vulnerable to liability for negligence and other torts. While those causes of action are typically precluded by state workers' compensation laws in the employment context, the preclusion generally does not apply when the affected individuals are not employees.

For example, two student-athletes injured during football practice recently sued Lackawanna College alleging negligence, negligence per se, gross negligence, and recklessness. According to the February 2017 lawsuit filed in Pennsylvania state court, the two athletic trainers on duty were not certified as such, which compounded the injuries. The case has been cleared to proceed to trial. 

Similarly, a former student-athlete filed suit against the University of Notre Dame and the NCAA, claiming he was not warned of the debilitating long-term dangers of repeated concussions that can result from playing football. In 2012, at age 57, the former student-athlete was diagnosed with severe cognitive decline, traumatic encephalopathy, Alzheimer's disease, and dementia, which he claims were caused by the repeated head injuries he suffered on the field. An Ohio appeals court recently permitted his claims of negligence, fraudulent concealment, and constructive fraud to proceed past the motion to dismiss phase, despite the fact that the plaintiff passed away in 2015. 

Legal Challenges Likely To Continue

The good news for academic institutions is that courts have started creating a consistent body of case law confirming student-athletes are generally not considered employees. However, the massive amount of revenue generated by intercollegiate athletics, combined with a growing awareness of the health and safety issues facing student-athletes, ensures that legal challenges regarding the status of student-athletes will likely continue, and could in fact intensify. Even if institutions do not find themselves caught in the web of various workplace laws, maintaining the amateurism model may simply open them up to exposure for the types of claims "employees" typically cannot bring against their employers. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions