On the same day the Big Ten announced a seven-year, $7 billion deal to televise games played by college athletes, attorneys for the NCAA filed a brief citing cases involving dog groomers, exotic dancers and aspiring cosmetologists to insist that college athletes aren’t employees.

The brief is the latest development in Johnson v. NCAA, wherein current and former college athletes argue that students playing college sports ought to be classified as employees under the Fair Labor Standards Act (FLSA). FLSA classification would mean that college athletes are treated like their non-athlete, work-study classmates—some of whom, like athletes, have scholarships and are paid to work around campus, at places such as the library, dining hall, or the ticket counter or concession stand at games. As FLSA employees, college athletes would be owed minimum wage and related benefits but would not be able to unionize (absent other legal developments). Johnson is currently before the U.S. Court of Appeals for the Third Circuit after Judge John Padova denied the NCAA’s motion to dismiss last fall.

Much of the NCAA’s 53-page brief urges the Third Circuit to carefully consider Berger v. NCAA. In 2016, the Seventh Circuit held that college athletes aren’t employees under the FLSA. The Third Circuit, as a different federal court of appeals, isn’t obligated to reach the same decision. However, the NCAA contends the Seventh Circuit correctly reasoned that playing college sports doesn’t constitute “...

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