Turning Student Discipline into HR Violations?: The Implications of Calling Student-Athletes “Employees” Under the Fair Labor Standards Act in Light of Johnson v. NCAA

Kendall Tribus**

The world of college athletics is changing. Throughout much of the history of college sports, run by the National Collegiate Athletics Association (NCAA), collegiate student-athletes were unable to receive financial compensation relating to their athletic performance despite generating extraordinary amounts of revenue. Revenue includes money from ticket sales, merchandise depicting student-athletes, camps run by the school and staffed by the student-athletes, and other sources. The NCAA justified the arrangement by claiming the importance of maintaining “amateur status” for student-athletes. But present and former student-athletes have begun challenging the NCAA under the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA).¹ Alleging student-athletes should be considered “employees” under the FLSA, two cases, Berger v. NCAA from the Seventh Circuit and Dawson v. NCAA from the Ninth Circuit, have been decided in favor of the NCAA. However, a July 2024 decision from the Third Circuit in Johnson v. NCAA affirming the district court’s denial of the NCAA’s motion to dismiss may result in a circuit split. If the Johnson case is ultimately decided against the NCAA, there could be major implications, across a variety of legal areas. While classifying student-athletes as employees could have benefits for student-athletes, those benefits must be considered alongside the potential challenges and related changes.

This Note will consider the application of the economic realities test from the Third Circuit in Johnson, as well as the implications of classifying student-athletes as employees. To understand the current landscape, Part I of this Note provides background on the NCAA and its recent changes, the definition of “employee,” the Fair Labor Standards Act, and the initial discussion on student-athletes as “employees.” Part II examines the tradition and development of “amateurism” in student-athletics as well as an analysis of the related cases, while Part III discusses the application of the Johnson economic realities test. Finally, Part IV discusses implications of considering student-athletes “employees” under the FLSA and argues why, in light of the implications of a finding that student-athletes would qualify as employees under the economic realities test, Congress should step in.

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* This Note was prepared prior to the approval of the House settlement. Accordingly, the analysis may be impacted depending on the application of the House settlement and pending congressional action.

** J.D. Candidate, May 2026, University of Notre Dame Law School. Thank you to Professor Julie Douglas and to Jill Bodensteiner for their guidance and support throughout the writing process. I also thank the Volume 101 Reflection team for their thoughtful feedback. Thank you to my parents for their encouragement and to my brothers and fiancé for being my captive audience in our many conversations about this Note. All mistakes are my own.

1 While the NLRA is one avenue towards employee status for student-athletes, this Note will focus on the developments under the FLSA.