Since last year’s monumental Supreme Court decision in Alston curtailing the National Collegiate Athletic Association’s (NCAA) ability to limit student athlete compensation, the landscape continues to shift in unprecedented ways. In September 2021, the National Labor Relations Board (NLRB) announced its position that certain student athletes at private institutions should be considered employees for purposes of organizing and other National Labor Relations Act (NLRA) protections. Now, the U.S. 3rd Circuit Court of Appeals (which covers employers in Delaware, New Jersey, and Pennsylvania) will decide whether student athletes can be classified as employees under the Fair Labor Standards Act (FLSA), the federal law mandating minimum wage and overtime compensation.

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Amateurs or Employees?

In the case pending before the 3rd Circuit, a group of Division 1 student athletes from several states filed a lawsuit in the U.S. District Court in the Eastern District of Pennsylvania alleging that student athletes who engage in interscholastic athletic activity for their schools are “employees” and should be paid minimum wage and overtime for the time spent participating in those activities. The NCAA asked the court to dismiss the lawsuit.

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