Law360 included insights from McGuireWoods partner Sarah Wake in a June 30, 2023, article previewing wage and hour “cases to watch” in the second half of this year.
Wake analyzed Johnson v. NCAA, a federal lawsuit brought by student athletes who argue they should have been paid like employees. The NCAA appealed a trial court’s decision determining that the students plausibly showed they could be considered school employees under the Fair Labor Standards Act. The matter is before the 3rd U.S. Circuit Court of Appeals.
“The Johnson case, unlike some other high profile cases related to student athletes, involves student athletes from sports other than football and men’s and women’s basketball,” Wake said. “Said another way, the Johnson case does not turn on revenues, but rather, a student’s participation in any Division I sport.”
Wake noted that February oral arguments at the 3rd Circuit focused on the level of control a school and the NCAA assert over athletes — an important factor in determining employee status.
“It is true that student athletes are subject to a broad set of rules that can impact their daily lives,” she said. “However, it’s also true there are several areas where courts have said the traditional tests related to employment status do not capture the economic reality of the relationship between parties.”