Tamara Statman may have had a student ID card during her four years playing softball at the University of Arizona, but she sometimes wondered if she should read “Employee” instead.
If practice times conflicted with classes Statman and his teammates wanted to take, practice always took precedence, discouraging some students from pursuing their intended majors. Some athletes waited until after they had graduated, or had exhausted their NCAA eligibility, to pursue internships or summer jobs. Some, like Statman, who worked for a food delivery service, should have odd jobs late in the night to help pay for food, rent and utilities.
“There is some leave to college with a lot of money, possibly injured, and without any direction on what to do next,” said Statman, 24, an educator now known by her married name, Tamara Schoen. Guidebook for aspiring collegiate athletes. “Being a college athlete does not mean you have a scholarship,” she added, “but you are probably expected to put the same amount, or more, into the work. Call it what it is – a job – and they may not be able to accept it easily in their study track of choice. “
Her experiences made such an indelible impression that it led her to join the newest – and biggest – group of plaintiffs in a case that could upend college sports.
Filed in 2019 by Trey Johnson, a former Villanova University football player, the lawsuit accuses the NCAA and some of its member colleges of violating federal minimum-wage laws by refusing to pay pay athletes like employees. And, to the surprise of some legal experts, the case has gained momentum since last summer, thanks to favorable rulings by the federal judge over the case and seismic changes in college athletics.
In June, the Supreme Court unanimously ruled in NCAA v. Alston said that student-athletes could not be barred from receiving modest payments related to education. Not long afterward, the NCAA, facing pressure from state legislatures, didn’t stop athletes from making 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 viewed as employees under the Fair Labor Standards Act.
Then, in September, the top lawyer for the National Labor Relations Board wrote in a memo that athletes at private universities should be viewed as employees, and allowed to unionize and seek protection from retaliation.
Sarah K. Wake, a lawyer who served on the NCAA Division I Committee on Infractions 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 response to the way student-athletes are treated,” said Wake, now a partner specializing in employment and education issues at McGuireWoods in Chicago and a co-author of “Student Athletes: The Times They Are A-Changin ‘, “a recent paper published by the National Association of College and University Attorneys. “It’s a group of people who, for a long time, felt that they had not been heard.”
While the NCAA has relented on some issues, like athletes being able to 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 demand.
An NCAA spokeswoman declined to comment. But in court filings, the NCAA has cited the federal Department of Labor’s handbook, as well as legal precedents, arguing that students are amateurs. The association is also convinced that it regulates college sports, and does not employ students who have 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 are now signed on 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, coast to coast: One played goalie for the University of Notre Dame’s men’s lacrosse team. One was a long jumper for the University of Oregon women’s track and field team.
“All of these kids are working for the school, providing value to the school even if the sports aren’t revenue-generating,” said Renan F. Varghese, a lawyer at Wigdor LLP who represents the plaintiffs. “It’s a very unfair bargaining position, and all this case is trying to do is even the odds, just a little bit, for everybody.”
In their affidavits, the plaintiffs detailed their daily workouts, meetings, film sessions, travel arrangements and game schedules as requirements for their employment.
In an interview, Johnson, the lead plaintiff, described playing football and taking classes as “working two full-time jobs.” He wanted to study physics, and several science and quantitative classes began as early as 8:30 am but he was bluntly told that he could not take any classes before 11:30 am, in order to avoid conflicts with football workouts. So, he majored in communications and minored in economics.
“I think everyone deserves a certain amount of control over their lives,” said Johnson, who is now a financial representative for a Tampa, Fla., Financial planning firm. “Everything was just preplanned for us. I think that doesn’t benefit us eventually in the long run. “
He added that he has heard frequently from athletes offering support for the lawsuit. “I’m definitely super blessed to be in this position. And I know when you want to do something important, it takes time. “
One month after Johnson, represented by Paul L. McDonald, a Philadelphia lawyer, filed his lawsuit in November 2019, five former athletes joined the case, including tennis players from Sacred Heart University and Lafayette College; a Fordham University swimmer and baseball player; and a Cornell University soccer player.
Eight more, including Statman, a Tulane University linebacker, and a Duke University pole-vaulter, joined in September 2021.
“I had little say-so in what classes I took,” said one plaintiff, who spoke on condition of anonymity to avoid running afoul of a workplace policy. “They knew the professors worked with the players, or the easiest way for us to get through college and remain eligible.”
The case has reached a critical stage: Unexpectedly, Judge Padova essentially paused the case in December, requesting the defendants, so the United States Court of Appeals for the Third Circuit in Philadelphia could weigh in.
“If the appellate court agrees with the district court that college athletes can be seen as employees – or even if they agree and, say, narrow it down to just football and basketball players – that will be a huge deal,” said Sam C. Ehrlich, a management professor at Boise State University who has written about college athletes and the Fair Labor Standards Act.
The first set of briefs, from the schools and the NCAA, is due on May 31, and a decision is not expected until later 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 effect 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 being involved in unfair labor practices.
Legislators in several states, including Iowa and New York, are pushing to classify student-athletes as employees, Wake said during 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 “extremely concerned” about the effect that classification has on “possible related benefits and protections such as managing rights, strike, overtime pay, minimum wage, health and safety protections, and more. “
During a recent meeting organized by the Aspen Institute, Bob Bowlsby, the departing commissioner of the Big 12 Conference, predicted “stress in the system” if employee status were granted to athletes, and said that most Olympic sports would be eliminated – first men’s, Then women – because of the revenue pressures.
He also bemoaned that he had “never seen such a litigious environment.”
“People who are otherwise measured, thoughtful, insightful individuals lose college athletes around their minds,” he said. “It’s not a healthy trend.”