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Keywords

sports law; NCAA; employment law; FLSA; amateurism; NIL; student-athlete; employees; gender equality; equal pay; Title IX; gender discrimination; education-related benefits

Abstract

In 2021, the landscape of National Collegiate Athletic Association (NCAA) sports as we knew it shifted dramatically as the U.S. Supreme Court held that student-athletes could now receive compensation based on their names, images, and likenesses (NIL). For the first time in the history of college sports, student-athletes may now receive a share of the billions of dollars that they have been generating for their universities and the NCAA for decades. Since this ruling, however, there have been several questions as to how to best regulate student-athletes in this new universe, and whether the NCAA’s long-standing amateurism model is durable enough to withstand these drastic changes. Not only must these concerns be addressed, but they must also be considered against the backdrop of gender equality to avoid further widening the gap between men’s and women’s athletics and conflicting with the mandates of Title IX.

Along with questions of regulation, there is the emerging issue of whether student-athletes should be considered employees of the universities that they attend. Courts have been apprehensive to afford employee status to this class of students because of the tensions that would arise between federal labor laws and current NCAA bylaws. However, the U.S. Court of Appeals for the Third Circuit recently held that all college athletes are not barred from bringing a Fair Labor Standards Act (FLSA) claim simply due to their “amateur-status.”

This Note argues that courts answering the question of whether student athletes may plausibly be employees under the FLSA should utilize a student athlete specific test, in order to address the particularities of the context at hand. Further, this test must reflect factors that the Supreme Court has previously deemed relevant to this inquiry to avoid a disparate impact among female and male student-athletes. Lastly, if the “student athlete employee” is established, benefits, such as NIL compensation, should function under Title IX’s substantially equal standard, and Title VII’s affirmative defense of the market excuse should not be made available to universities defending against claims of discrimination based on gender.

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