Tamara Statman may have had a student ID during her four years of softball at the University of Arizona, but she sometimes wondered if it should have read “Employee” instead.
If practice hours conflicted with the courses Statman and his teammates wanted to take, practice always took precedence, discouraging some students from pursuing their majors. Some athletes waited until they graduated or exhausted their NCAA eligibility to pursue internships or summer jobs. Some, like Statman, who worked for a food delivery service, took on odd jobs late into the night to help pay for food, rent and utilities.
“There are some who leave college without a lot of money, perhaps hurt and without any guidance on what to do next,” said 24-year-old Statman, an educator now known by her stage name. wife, Tamara Schoen, and the author of a guide for budding college athletes. “Being a varsity athlete doesn’t automatically mean you have a scholarship,” she added, “but obviously you’re expected to work the same amount or more. Call it what it is. – a job – and they may be able to easily accept not being in the study path of their choice.
Her experiences have made such an indelible impression on her that they recently led her to join the newest – and largest – class of plaintiffs in a case that could upend college sports.
Filed in 2019 by Trey Johnson, a former Villanova University football player, the suit accuses the NCAA and some of its member colleges of violating federal minimum wage laws by refusing to pay athletes as employees . And, to the surprise of some legal experts, the case has gained considerable momentum since last summer, thanks to favorable rulings by the federal judge presiding over the case and seismic changes in college athletics.
In June, the Supreme Court ruled unanimously in NCAA v. Alston that student-athletes could not be prevented from receiving relatively modest education-related payments. Soon after, the NCAA, facing pressure from state legislatures, failed to stop athletes from starting to make money from their fame under new name, image and likeness rules. .
In August, Judge John R. Padova of the United States District Court for the Eastern District of Pennsylvania denied the NCAA’s motion to dismiss the Johnson case. Citing the Alston decision, Judge Padova said it was plausible that athletes could be considered employees under the Fair Labor Standards Act.
Then, in September, the top attorney for the National Labor Relations Board wrote in a memo that private college athletes should be considered employees, and allowed to unionize and seek protection from retaliation.
Sarah K. Wake, an attorney who served on the NCAA’s Division I Infractions Committee and worked on Title IX and athletics issues at three Midwestern universities, described the events as “a summer of discontent” for the NCAA.
“All of these things are happening in reaction to how student-athletes have been treated,” said Wake, now an employment and education partner at McGuireWoods in Chicago and co-author of “Student Athletes : The Times They Are A-Changin’,” a recent article published by the National Association of College and University Attorneys. “This is a group of people who, for a long time, felt they weren’t heard.”
While the NCAA has conceded on some issues, like which athletes can benefit from their names, images and likenesses, it has insisted that players not be classified as employees, and the Johnson case strikes at the heart of that claim.
An NCAA spokeswoman declined to comment. But in court filings, the NCAA cited the federal Department of Labor handbook, as well as case law, arguing that the students are amateurs. The association also maintained that it regulates varsity sports and does not employ students who participate in extracurricular activities.
The law firm representing the NCAA, Constangy, Brooks, Smith & Prophete, also represents the universities named as defendants.
“We don’t comment on pending litigation,” said Steven B. Katz, co-chair of the firm’s appellate practice group.
Fourteen former Division I athletes have now signed as plaintiffs. Some spoke publicly for the first time in interviews with The New York Times.
The group includes men and women from public and private schools from coast to coast: one served as a goaltender for the University of Our Lady. One was a long jumper for the University of Oregon women’s track team.
“All of these children work for the school, bringing value to the school even though the sports do not generate revenue,” said Renan F. Varghese, attorney at Wigdor LLP representing the plaintiffs. “It’s a very unfair negotiating position, and all this deal is trying to do is level the playing field, just a little bit, for everyone.”
In their affidavits, the plaintiffs detailed their daily training sessions, meetings, movie times, travel and game schedules as requirements for their jobs.
In an interview, Johnson, the main plaintiff, described playing football and attending school as “working two full-time jobs.” He wanted to study physics and several science and quantification classes started as early as 8:30. But he was told in no uncertain terms that he could not attend lessons until 11:30 a.m., in order to avoid conflicts with football training. He therefore majored in communication and minored in economics.
“I think everyone deserves some control over their life,” said Johnson, who is now a financial representative for a financial planning firm in Tampa, Florida. “Everything was just pre-planned for us. I think it ultimately doesn’t benefit us in the long run.
He added that he had frequently heard athletes offer their support for the trial. “I am really very lucky to be placed in this position. And I know that when you want to do something important, it takes time.
A month after Johnson, represented by Paul L. McDonald, a Philadelphia attorney, filed his lawsuit in November 2019, five former athletes joined the case, including tennis players from Sacred Heart University and the Lafayette College; a swimmer and baseball player from Fordham University; and a football player from Cornell University.
Eight others, including Statman, a linebacker from Tulane University and a pole vaulter from Duke University, joined in September 2021.
“I didn’t have much to say about the courses I took,” said one complainant, who spoke on condition of anonymity to avoid breaching a workplace policy. “They knew which professors were working with the players, or the easiest way for us to finish college and stay eligible.”
The case has reached a critical stage: Judge Padova unexpectedly suspended the case in December, at the request of the defendants, so that the United States Court of Appeals for the Third Circuit in Philadelphia could intervene.
“If the appeals court agrees with the district court that varsity athletes can be considered employees – or even if they agree and, say, limit themselves to players football and basketball – that’s going to be a big deal,” said Sam C. Ehrlich, a management professor at Boise State University who has written about varsity athletes and the Fair Labor Standards Act.
The first set of briefs, from the schools and the NCAA, are due May 31, and a decision is not expected until the end of this year at the earliest. Ehrlich, a former sports agent consultant and immigration lawyer, expects the losing side to try to appeal to the Supreme Court.
But the cumulative impact of these dizzying developments is already resonating.
In February, the National College Players Association, an advocacy group, petitioned the NLRB in California, accusing the University of Southern California, UCLA, the Pac-12 Conference and the NCAA of engaging in unfair labor practices.
Lawmakers in several states, including Iowa and New York, are pushing to classify student-athletes as employees, Wake said in a recent webinar sponsored by the LEAD1 association, which represents the athletic directors of the 130-member Football Bowl Subdivision. Most athletic directors, a LEAD1 survey found, are “very concerned” about the effect of this classification on “possible corresponding benefits and protections such as the rights to organise, to strike, overtime pay, minimum wage, health protection and security, and more.
During a recent meeting organized by the Aspen InstituteBob Bowlsby, the outgoing commissioner of the Big 12 Conference, predicted “stress in the system” if employee status was granted to athletes, and said most Olympic sports would be eliminated – first men, then women – because of income pressures.
He also lamented that he had “never seen such a contentious environment”.
“People who are otherwise measured, thoughtful, discerning individuals lose their minds around college athletes,” he said. “It’s not a healthy trend.”