Michael LeRoy is the LER Alumni Professor and an expert in labor law at the University of Illinois Urbana-Champaign. LeRoy, also the author of “Collective Bargaining in Sports and Entertainment,” spoke with News Bureau business and law editor Phil Ciciora about the potential consequences of the court case Johnson v. NCAA. LeRoy submitted an amicus brief in Johnson v. NCAA to the U.S. Court of Appeals for the 3rd Circuit to provide guidance on whether college athletes ought to be considered employees who are eligible for wages.
What would a ruling in favor of the plaintiffs in Johnson v. NCAA mean, and how important would it be to the future of NCAA sports?
It would potentially be the most important ruling in college athletics since the NCAA was formed in 1906. At that time, college sports – especially football – were plagued by cheating. Teams would, for example, add professional baseball players and boxers to their rosters for Saturday games. The newly formed NCAA banned anyone who was paid to play a sport from playing college athletics.
A ruling in favor of the plaintiffs in Johnson v. NCAA would mark the first time in 117 years that a court hasn’t accepted at face value the NCAA’s rules against pay-for-play. The appeals court would then return the matter to a lower court, which would eventually seat a jury to decide the amateurism-versus-employment issue.
There are more than half a million NCAA athletes at over 1,100 NCAA colleges and universities. If the court were to rule in favor of the plaintiffs, would all NCAA athletes become employees overnight?
That’s for the trial court in the Johnson case to decide. My brief argued that the NCAA “misclassifies” some or many of its athletes as amateurs, rather than employees.
Over the past decade, more courts have ruled that gig workers – ride-share drivers, home nurses, cable TV installers, even certain professional employees, for example – are forced into independent contractor agreements but essentially work for the same company. They can’t qualify for minimum wages, overtime pay, workers compensation insurance, form a union and so on.
In my amicus brief, I compared college athletes to those independent contractors using a six-factor legal test under the federal minimum wage law. I also used the NCAA’s 450-page rulebook that mentions “work” – such as “workout” – more than 100 times. NCAA rules, for example, set limits on workouts. In my brief, I equated this to supervisors who set a schedule for employees.
When will we know the final outcome of this lawsuit?
That’s likely several years away. The court will have to figure out if Division I athletes in revenue sports such as football and basketball are employees, and then apply that test to athletes in non-revenue sports. Then the court will need to consider Division II and Division III schools, which are smaller than DI schools and thus generate less revenue.
In the meantime, a ruling in favor of the plaintiffs in the Johnson case would put a ton of pressure on the NCAA and its major conferences to voluntarily adopt an employment model for their athletes.
Would the NCAA appeal the ruling to the U.S. Supreme Court, and what kind of reception would the case have there?
The NCAA would almost certainly appeal to the Supreme Court. They would argue that the matter was settled in two previous cases – just like this one – that the NCAA won, so they’ve been operating under an assumption that the amateur model is still valid.
Plus, the NCAA would argue that college athletics cannot proceed where employment could be legally possible for some athletes in Pennsylvania, New Jersey and Delaware but nowhere else, which would be the situation if athletes win the current round of litigation. A uniform rule is necessary for competition between schools to be reasonably fair.
But in a separate case involving an antitrust claim – NCAA v. Alston, decided in 2021 – the Supreme Court voted 9-0 against the NCAA’s legal position that was heavily based on the amateurism model.
And I wouldn’t be surprised if Justice Brett Kavanaugh wrote the opinion for another 9-0 ruling, given his concurring statement in Alston: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”
Editor’s note: To contact Michael LeRoy, call 217-244-4092; email mhl@illinois.edu.
