Q: Are student athletes considered employees under the Fair Labor Standards Act (FLSA)?
A: Not under current law, but it is widely suspected that before long, courts will deem at least some types of student athletes to be employees under the FLSA. Courts determine whether an employment relationship exists under the FLSA by looking at whether the “economic realities” of the relationship are consistent with employment (although there is no agreement among the circuit courts of which test best determines these economic realities). In the 2021 decision NCAA v. Alston, the Supreme Court characterized student athletes as participants in a labor market for purposes of federal antitrust laws. The Alston opinion left little reason to doubt that the Court would arrive at the same conclusion when considering the “economic reality” of student athletes as employees under the FLSA. The bigger question is where the Court will ultimately draw a line to separate student athlete-employees from truly amateur sports. The Third Circuit is currently considering an appeal that raises this very question, which may be the vehicle by which this appears before the Supreme Court.
Pre-Alston
Before Alston, most courts held that student athletes were not employees of the schools they attended. For example, the Seventh Circuit in Berger v. NCAA held that, since play is not work and student athletes are amateurs who voluntarily play without expecting any income, they do not qualify as employees under...
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