the BigAmateurism monologues

In a trilogy of cases since late 2014, athletes claim they are employees under the federal Fair Labor Standards Act (FLSA). The FLSA provides minimum wage and overtime standards for hourly workers. The purpose of the FLSA is distinct from and more limited than the National Labor Relations Act (NLRA), which provides an avenue for workers to have a say in their work conditions through collective bargaining. Under both laws, putative workers must first establish they are indeed employees. The employee tests for the FLSA and NLRA have some overlap but are not identical. However, all employee tests are multi-factored and require extensive fact findings under broad statutory eligibility criteria that require an analysis of the totality of the circumstances. Neither law expressly excludes college athletes from coverage. In Johnson v NCAA, the 3rd Circuit Court of Appeals will determine whether the FLSA categorically excludes athletes from FLSA coverage. The primary inquiry under the FLSA is the “economic reality” of the relationship between putative employer and employee. In the first case of the FLSA trilogy—Berger v NCAA—the 7th Circuit Court of Appeals affirmed a ruling of the district court that athletes cannot be employees under the FLSA as a matter of law. Relying on a 1992 case—Vanskike v Peters—rejecting a prisoner’s claim that his forced prison labor made him an employee under the FLSA, the district court and 7th Circuit excluded athletes as employees under the FLSA without any factual inquiry or the application of any of multi-factored tests designed to determine employee status under the FLSA. Neither the district court nor the 7th Circuit in Berger disclosed the legal rationale of Vanskike, which relied on an exception to the 13th Amendment that exempted indentured servitude for prisoners duly convicted of a crime. In essence, the Berger courts said that because of the revered tradition of amateurism and the “student-athlete,” college athletes are similarly situated to prisoners. This episode discusses the FLSA litigation and the tactics employed by federal courts and the NCAA to avoid at all costs any factual inquiry into the truth of the college sports business model and, importantly, the actual “economic reality” of the relationship between athletes and their institutional overlords.