Johnson v. NCAA: Employee Status, Circuit Split, and Alston

Johnson v. NCAA is a federal class-action lawsuit that asks whether Division I college athletes are employees entitled to at least the federal minimum wage under the Fair Labor Standards Act. The lead plaintiff, former Villanova defensive back Ralph “Trey” Johnson, sued the NCAA in 2019 along with thirteen other current and former athletes. In July 2024, the Third Circuit Court of Appeals rejected the NCAA’s argument that “amateurism” categorically shields it from federal wage law and sent the case back to the district court with a new legal test for deciding when an athlete counts as an employee.¹

Who Filed the Case and Why

Johnson played defensive back at Villanova from June 2013 through November 2017. In the complaint, he describes his athletic schedule as a job: mandatory team activities on weekdays starting at 5:45 a.m., a routine that he says prevented him from taking the classes required for his original physics major.² He was recruited to Villanova by teammate Poppy Livers, who had earlier been the lead plaintiff in a similar case that was withdrawn on statute-of-limitations grounds. After college, Johnson had brief training-camp stints with the Pittsburgh Steelers and Denver Broncos but never played in an NFL regular-season game. He now works as a financial representative in Tampa.³

Johnson and his co-plaintiffs filed suit on November 6, 2019, in the United States District Court for the Eastern District of Pennsylvania (Case No. 2:19-cv-05230). The group included swimmers, baseball players, track athletes, and football players from Villanova, Fordham, Cornell, Sacred Heart, and Lafayette.³ They are represented by attorneys from Wigdor LLP, including Renan Varghese and Michael J. Willemin.⁴

What the Athletes Are Asking For

The core claim is that Division I athletes perform services generating substantial revenue for their schools and the NCAA, and that the FLSA entitles them to at least the federal minimum wage for the hours they work. The complaint also raises unjust enrichment claims and state wage claims under Connecticut, Pennsylvania, and New York law.⁴ Originally, 25 individual schools were also named as defendants, but those claims were dismissed and the NCAA remains the primary defendant.³

The relief athletes seek is straightforward wage-and-hour recovery: minimum wage for time spent on athletic duties, potential overtime, and back wages. A win would not, on its own, create a salary system or a collective bargaining framework. It would establish that the FLSA applies.

The NCAA’s Defense

The NCAA argued that athletes cannot be employees because amateurism is the defining feature of college sports. Athletes, in its telling, are students pursuing degrees while receiving non-monetary benefits, discipline, leadership training, time management, and teamwork, rather than workers selling labor.¹

The association pointed to the Department of Labor’s Field Operations Handbook, which classifies interscholastic athletics as “extracurricular” activities, and to language from the Supreme Court’s 1984 decision in NCAA v. Board of Regents of the University of Oklahoma praising the “revered tradition of amateurism.” It also noted that its bylaws prohibit member schools from paying athletes and impose sanctions on those who do.¹

The Third Circuit characterized this reasoning as circular: athletes cannot be paid because they are amateurs, and they are amateurs because they are not paid.¹

The Third Circuit Ruling

On July 11, 2024, the Third Circuit issued its decision in Johnson v. National Collegiate Athletic Association, 108 F.4th 163 (3d Cir. 2024). The court held that college athletes are not barred from bringing FLSA claims simply because the NCAA calls them amateurs, noting that the FLSA’s definition of an employee, “any individual employed by an employer,” is the broadest in any federal statute.⁵

The panel also discarded the framework the district court had used, an internship test drawn from Glatt v. Fox Searchlight Pictures, on the ground that college athletics are not part of an academic curriculum and lack the educational or vocational structure of an internship. In its place, the Third Circuit adopted a new four-part test rooted in common-law agency principles and the “economic realities” of the athlete-school relationship. Under that test, a college athlete may qualify as an employee when they:

Perform services for another party;
Primarily benefit that other party through their services;
Operate under the control, or the right of control, of that party; and
Receive compensation in the form of express or implied pay or in-kind benefits.

The court instructed that the inquiry must consider the totality of the circumstances and that labels like “student-athlete” carry no weight if the economic substance of the relationship looks like employment. The line to be drawn, the majority wrote, is between “play” and “work,” and refining that distinction is now the district court’s task on remand.⁵

Judge Porter’s Concurrence

Judge Porter agreed with the result but wrote separately to flag a problem the majority did not resolve: how to tell “work” from “play.” Revenue generation is the intuitive metric, but Porter warned that using it could clash with Title IX. If only athletes in revenue-producing sports like football and men’s basketball were treated as employees and paid accordingly, the resulting pay gaps between male and female athletes could conflict with Title IX’s equity requirements.⁵

The Circuit Split

The Third Circuit’s ruling put it at odds with two other federal appellate courts. The Seventh Circuit held in Berger v. NCAA (2016) that student-athletes are not FLSA employees, leaning on the amateurism tradition and the Department of Labor’s treatment of athletics as extracurricular.⁶ The Ninth Circuit reached the same conclusion in Dawson v. NCAA (2019), holding that Division I football players are not employees of the NCAA or the Pac-12, though it declined to adopt Berger‘s reasoning.⁷ A three-way disagreement of this kind often draws Supreme Court review, though no petition for certiorari has been reported.

How Alston Set the Stage

The Supreme Court’s unanimous 2021 ruling in NCAA v. Alston had already weakened the ground the NCAA stood on. In Alston, the Court held that NCAA limits on education-related benefits, things like graduate scholarships and academic tutoring, violated the Sherman Act under the “rule of reason,” and it refused to give the NCAA any special antitrust deference.⁸

Justice Kavanaugh’s concurrence went further, calling the NCAA’s suppression of athlete pay “highly questionable” and writing that “nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”⁸ That language was widely read as an invitation to challenge the remaining compensation restrictions, and the Johnson plaintiffs took it up. After Alston, the NCAA also adopted a name, image, and likeness policy on July 1, 2021, allowing athletes to earn money from endorsements under certain conditions.⁹ The Johnson plaintiffs argue that NIL earnings and scholarships are not the same as wages owed under federal employment law.

How Johnson Differs From the House Settlement

Johnson is often confused with House v. NCAA, the antitrust settlement that Judge Claudia Wilken of the Northern District of California approved on June 6, 2025. They are separate cases attacking different pieces of the same structure. House resolved antitrust claims over past NIL restrictions and created a forward-looking revenue-sharing system: roughly $2.576 billion in back damages paid over ten years to Division I athletes who competed from 2016 through September 2024, and a mechanism allowing schools that opt in to share up to about $20.5 million annually with their athletes starting July 1, 2025.¹⁰

Johnson asks a different question: whether athletes are employees under federal wage-and-hour law. Nothing in the House settlement decides that. If the Johnson plaintiffs ultimately win, minimum wage obligations, potential overtime, and back wages would layer on top of the revenue-sharing commitments schools have already made under House. Commentators have also observed that the existence of the House revenue-sharing system undercuts the NCAA’s amateurism defense in Johnson: if schools are already paying athletes directly, the claim that athletes are unpaid amateurs is harder to sustain.¹¹

Title IX and Non-Revenue Sports

Classifying athletes as employees would move college sports out of the Title IX scholarship framework and into the world of employment law. Title IX currently requires proportional distribution of athletic scholarships between men and women. Employment statutes like Title VII and the Equal Pay Act evaluate whether workers doing comparable jobs receive equal pay, and courts often permit pay differences based on “factors other than sex,” including revenue generation.¹²

That shift could allow schools to pay football and men’s basketball players substantially more than athletes in women’s sports and non-revenue Olympic sports, justifying the gap by pointing to revenue. Critics respond that any such disparity would be tainted by decades of unequal institutional investment in men’s and women’s programs. NCAA President Charlie Baker has warned that employment classification could mean “ninety-five percent of NCAA student athletes could be unable to play their sports at the collegiate level” because of the added costs.⁵

Where the Case Stands Now

As of mid-2026, Johnson v. NCAA is back before the district court on remand, with reports of settlement discussions between the parties.¹³ The trial court now has to apply the Third Circuit’s new four-part economic realities test to decide whether the athletes in this case actually qualify as employees, a fact-intensive question the appellate court did not resolve. No trial date has been set, and the case has not yet reached discovery.

Two other legal fronts that once ran alongside Johnson have narrowed. An NLRB proceeding alleging that USC, the Pac-12, and the NCAA were joint employers of Trojan athletes was withdrawn by the National College Players Association in January 2025.¹⁴ A unionization petition by Dartmouth men’s basketball players, who voted 13-2 in March 2024 to join SEIU Local 560, was withdrawn in December 2024.¹⁵ Those withdrawals leave Johnson as the primary active challenge to the NCAA’s position that athletes are not employees.

Congress has been debating legislation that would affect the outcome. The Protect College Sports Act (S. 4668), introduced in the Senate on May 27, 2026, by Senators Ted Cruz, Maria Cantwell, Eric Schmitt, and Chris Coons, would grant the NCAA and the new College Sports Commission a targeted antitrust exemption and cap athlete eligibility at five years, but is silent on employment status, leaving that question to the courts.¹⁶ An earlier House bill, the SCORE Act, would have barred athletes from being classified as employees but was pulled from the floor in December 2025 without a vote.¹⁷ Whether Congress acts before the courts reach a final answer on employment status remains open.

1
United States Court of Appeals for the Third Circuit. Johnson v. NCAA, No. 22-1223
2
GovInfo. Johnson v. NCAA, Civil Action No. 19-5230
3
The Philadelphia Inquirer. Villanova Trey Johnson Poppy Livers NCAA Lawsuit
4
Justia. Johnson v. NCAA, No. 22-1223
5
Harvard Law Review. Johnson v. National Collegiate Athletic Ass’n
6
Justia. Berger v. NCAA
7
United States Court of Appeals for the Ninth Circuit. Dawson v. NCAA
8
Supreme Court of the United States. NCAA v. Alston
9
St. Thomas University. College Athletics Post-Alston
10
ESPN. Judge Grants Final Approval House v. NCAA Settlement
11
Bricker & Eckler. What You Missed This Summer in Higher Ed Athletics
12
University of Chicago Law Review. College Athletes as Employees: Implications for Title IX and Unequal Pay
13
Fisher Phillips. Bipartisan Senate Bill Would Reshape College Sports
14
Sportico. NCPA Withdraws Unfair Labor Practice Charge
15
NLRB. Trustees of Dartmouth College, Case No. 01-RC-325633
16
ESPN. Bipartisan College Sports Bill Proposes Salary Cap, Transfer Limit
17
Whiteboard Advisors. House GOP Punts on SCORE Act Vote