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14 Harv. J. Sports & Ent. L. 57 (2023)
Are College Athletes Employees under the Fair Labor Standards Act?

handle is hein.journals/harvsel14 and id is 65 raw text is: 40LJournal of Sports & Entertainment Law HARVARD LAW SCHOOL Are College Athletes Employees under the Fair Labor Standards Act? Michael H. LeRoy LER Alumni Professor School of Labor and Employment Relations, and College of Law University of Illinois at Urbana-Champaign ABSTRACT My amicus brief, submitted to the Third Circuit Court of Appeals in Johnson v. NCAA, 2022 WL 2828262, draws from the research in this Article. In Johnson, college athletes are seeking wages under the Fair Labor Standards Act. The NCAA argues that college athletes are amateurs, not employees, under their rules. Two appellate courts have been persuaded by the NCAA's argument in similar FLSA cases: Berger v. NCAA, 843 F.3d 285 (7th Cir. 2016), and Dawson v. NCAA, 932 F.3d 905 (9th Cir. 2019). My research analyzes shortcomings in the appellate briefs for college athletes in Berger and Dawson and offers a better way to conceptualize the employ- ment relationship between college athletes and schools. The Johnson court should apply the Supreme Court's interpretation of work in Armour & Co. v. Wantock, 323 U.S. 126, 132 (1944) to mean physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business. By delving into numerous NCAA rules that meticulously cover the hours and activities of college players, I demonstrate that these are work rules, not amateur rules-and, therefore, that the work performed by college athletes for the benefit of their schools is compensable as employment.