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Should College Athletes Be Employees of the Schools They Play For?

The House settlement handed athletes a share of the revenue while its own approval order declined to say whether they are employees, leaving a question that Johnson v. NCAA presses in court and the SCORE Act would foreclose by statute.

10 min read2026-07-18

Pay was settled without settling employment

For a century the argument about college sports was an argument about money: whether an athlete could be paid at all. The House settlement, approved in June 2025, closed that argument. Its operative filing lets Division I schools pay athletes directly up to 22 percent of the average Power Five athletic revenue each year, and it awards $2.576 billion in back damages to athletes who were, in the filing's own words, "unable to receive compensation for the use of their NIL and for their athletic services."1 The same motion frames the antitrust wrong it settles around "the relevant markets for student-athletes' labor services."1 Athletes now sell that labor for a regulated price.

What the settlement did not do is decide whether selling that labor makes an athlete an employee. The court's approval order says so on its face: the agreement "does not release" the claims in Johnson v. NCAA, "claims under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. or any other federal labor laws," or claims under Title IX.2 Pay and employment were severed deliberately.

That leaves the employment question exactly where the courts left it in Johnson v. NCAA. In July 2024 the Third Circuit held that college athletes "may be employees under the FLSA," rejected the idea that "a revered tradition of amateurism" bars them from suing, and sent the case back for a fact-bound analysis under a four-part economic-realities test.3 The ruling opened a door rather than walking through it. It decided that no athlete could be barred from the FLSA by amateurism alone, not that any athlete is an employee; Judge Porter, concurring only in the judgment, wrote that "the question presented is too fact-intensive" to resolve on the pleadings.3 The case is unresolved on remand before a district judge in Philadelphia, which is why the former litigator Michael McCann can write in 2026 that "college athletes still lack employment status" even after the largest settlement in the sport's history.4 The fight that money once stood in for is now the fight over the word itself. On one side stand labor economists, the plaintiffs' bar, and a players' association that would recognize athletes as employees the law already describes. On the other stand the NCAA, the White House, and an organized bloc of athletes who would write the label out of the statute before a court can write it in.

Labor economists, the Johnson plaintiffs' bar, the National College Players Association, and the senators behind the Right to Organize Act

College athletes already meet the legal definition of an employee, and the House settlement priced their labor without granting the wage-and-hour and bargaining rights that pricing labor is supposed to carry.

This camp argues from the tests already on the books rather than from a wish. The College Athlete Right to Organize Act, reintroduced in the Senate in July 2025, states in its findings that "college athletes exhibit the markers of employment as established under the common law definition of the term 'employee': They perform a valuable service for their respective colleges under a contract for hire in the form of grant-in-aid agreements; these agreements assert significant control over how athletes perform their work and the conditions under which they work; and they receive compensation in the form of grant-in-aid and stipends in exchange for their athletic services."5 The bill charges that "the NCAA and its member institutions have denied college athletes a fair wage for their labor by colluding to cap compensation," and it amends the National Labor Relations Act to make a paid athlete an employee of the school.5

The control the bill invokes is not abstract. Schools set the practice hours, the travel, the training schedule, and the discipline, and they can end an athlete's eligibility to compete for breaking the terms. That is the machinery the Third Circuit told the district court to weigh: whether athletes "perform services for another party," "necessarily and primarily for the [other party's] benefit," "under that party's control or right of control," and "in return for 'express' or 'implied' compensation or 'in-kind benefits.'"3 The court set the standard as a cumulative one, holding that "the touchstone remains whether the cumulative circumstances of the relationship between the athlete and college or NCAA reveal an economic reality that is that of an employee-employer."3 The National College Players Association presses the same case in political terms, and answers the objection this fight turns on directly: "collective bargaining would not end college sports should athletes ever be recognized as employees and choose to organize under the NLRA. Universities always have a choice to refuse to enter into a collective bargaining agreement that they deem harmful to college sports."6

The National College Players Association, standing here because it is an athlete-advocacy body independent of both the NCAA and the plaintiffs' bar, and it filed its position against the non-employee bills under its own name.6

The NCAA, conference commissioners, the White House, and the Division I, II, and III student-athlete advisory committees

Athletes should keep the student status the broad-participation model is built on, because an employment model would force schools to fund payroll by cutting the non-revenue and Title IX rosters the current system carries.

This camp would answer the employment question by statute before a court reaches it. The SCORE Act, which cleared two House committees in July 2025, provides in Section 8 that "notwithstanding any other provision of Federal or State law, no individual may be considered an employee of an institution, a conference, or an interstate intercollegiate athletic association based on the participation of such individual on a varsity sports team," and preempts state law to the same end.7 The reason offered is a budget one. Executive Order 14322, "Saving College Sports," warns that revenue sports "siphon[] away the resources necessary to support the panoply of non-revenue sports" and commits the government to "protect non-revenue sports, including many women's sports, that comprise the backbone of intercollegiate athletics" and "drive American superiority at the Olympics."8 The order notes that 65 percent of the 2024 United States Olympic team, and roughly 75 percent counting former athletes, came through NCAA programs, and it directs the Secretary of Labor and the National Labor Relations Board to "clarif[y] the status of collegiate athletes."8

The concrete mechanism the camp names is which rosters a payroll would reach. If wages land on the two sports that generate revenue, the order argues, the money to field the other two dozen has to come from somewhere, and the programs at the margin are the non-revenue, Olympic-pipeline, and women's teams the order commits to protect.8 The NCAA states the position as an institutional priority: its president, Charlie Baker, lists "affirming that student-athletes are not employees" among the association's asks of Congress.9 The athletes' own advisory committees say the same in their own filing: "This bill affirms what we know to be true regardless of division: student-athletes are students first ... not employees."10

The NCAA Division I, II, and III Student-Athlete Advisory Committees, standing here because they are elected athlete bodies rather than management, and they endorsed non-employee status in the legislative record under their own name.10

Two forums are racing to answer one fact question

The camps agree on most of the facts the employment test examines. Both concede that athletes generate revenue, that schools control their schedules, and that grant-in-aid is compensation of some kind. What each side is really predicting is what an employment ruling would set in motion, and the two predictions do not touch. The pro-employee camp predicts that a wage floor and a bargaining table would price labor the schools already extract, and it points to the NCPA's claim that universities keep the power to walk away from any contract "they deem harmful to college sports."6 The non-employee camp predicts a budget arithmetic that ends non-revenue rosters, the case Executive Order 14322 makes when it warns that "absent guardrails ... many college sports will soon cease to exist."8 Neither prediction has been tested, because no employer has yet been made to run the payroll or refuse the contract. The disagreement is a forecast wearing the clothes of a fact.

The fact underneath it, though, is answerable, and two forums are racing to answer it in opposite directions. One is Johnson v. NCAA, back before Judge Padova, where the four-part economic-realities test will be applied to actual evidence rather than argued in the abstract. McCann notes that the live pressure point is discovery: an FLSA case opens the athletes' timesheets and practice logs, and the prospect of that record may push the parties to settle rather than let a court read it.4 A verdict or a settlement there would answer the legal question on the evidence, and it is the nearest thing to a decisive event on the board. The other forum is Congress, where the SCORE Act would answer the same question by writing the label out of the law before any court applies the test.7

The third forum has already retreated, which is why the fight now runs through the first two. The labor board once pointed toward employee status: a regional director found in February 2024 that Dartmouth's men's basketball players were employees, and the players voted 13 to 2 to unionize. The union withdrew the petition in December 2024 to protect that ruling from a changing Board.11 Then, in February 2025, the acting general counsel rescinded the 2021 memo that had declared athletes employees, citing an unsustainable case backlog rather than any decision on the merits.12 The legislative path is stalled in a similar way: the SCORE Act passed the Education and Workforce Committee by a single vote, 18 to 17, and a companion cleared Energy and Commerce 30 to 23, but the floor vote has not come.13

One dispute the forums cannot settle is whether athletes want the label at all. The non-employee camp rests part of its case on the claim that they do not: the Division I, II, and III advisory committees say athletes are "students first ... not employees."10 The pro-employee camp answers with a count of its own. An independent survey of 1,086 college athletes, reported by Sportico, found 73 percent "in favor" of becoming employees, though the pollster cautioned that his poll was "not to be taken as a scientific survey."14 It adds that the athletes on the advisory committees are seated by the institutions with the most to lose, and that the preference of a first-year on scholarship is not the legal test in any case. That is a genuine dispute about sentiment, and it will be settled, if at all, by which athletes organize once a forum lets them, not by either side's count of who it has asked. Until Johnson returns a judgment or the SCORE Act reaches the floor, the question the House settlement left open stays open, and each camp holds the half of the record that answers it in its favor.

Sources

  1. In re College Athlete NIL Litigation · Plaintiffs' Motion for Preliminary Approval of Settlement (N.D. Cal., Doc. 450)
  2. In re College Athlete NIL Litigation · Order Granting Preliminary Approval of Settlement (N.D. Cal., Doc. 544)
  3. U.S. Court of Appeals for the Third Circuit · Johnson v. NCAA, No. 22-1223 (July 11, 2024)
  4. Sportico · Michael McCann, "Johnson v. NCAA: The Billion Dollar Case on Student Athlete Employment"
  5. U.S. Congress · College Athlete Right to Organize Act, S. 2469, 119th Cong. (2025)
  6. National College Players Association · Opposition Letter to the SCORE Act (Ramogi Huma, July 17, 2025)
  7. U.S. Congress · SCORE Act, H.R. 4312, 119th Cong. (2025)
  8. The White House · Executive Order 14322, "Saving College Sports" (July 24, 2025)
  9. NCAA · Charlie Baker, "2025 State of College Sports" Address (Jan. 14, 2025)
  10. NCAA Division I, II, and III Student-Athlete Advisory Committees · Joint Statement of Support for the SCORE Act (July 15, 2025)
  11. Sportico · "Dartmouth Basketball Withdraws NLRB Petition" (Dec. 2024)
  12. National Labor Relations Board · Acting General Counsel William B. Cowen, "GC 25-05: Rescission of Certain General Counsel Memoranda" (Feb. 14, 2025)
  13. Bloomberg Law · "Student-Athlete Employment NIL Bill Clears Two House Committees"
  14. Sportico · Daniel Libit, "Charlie Baker's Claims of NCAA Athletes' Labor Stance Get Pushback" (Nov. 13, 2023), reporting the Student-Athlete Insights survey