Connor Locke: Senior Staff Writer

2025 marks the dawning of a new era in college athletics, but it appears likely that 2025 will also be the year that the NCAA finally cements its long-fought status quo preventing athletes from being compensated for their on-field labor. In a monumental shift toward fair compensation for top athletes, universities are now able to, for the first time in NCAA history, directly pay their athletes for their name, image, and likeness (“NIL”). This change was brought about by a class action settlement in House v. NCAA, which was finalized on June 6, 2025.[1] While pay-for-play agreements remain outlawed under NCAA bylaws,[2] many athletes will have a contractual relationship with their university that awards them direct compensation, rather than just an educational scholarship. The legalization of NIL in 2021 created tremendous financial opportunity for top athletes in the most lucrative sports but has also entrenched disparities based on gender and sport[3] which are likely to persist under the House Settlement’s new direct payment model.

As the sports world turned its focus to NIL, the NCAA sought to attain many of its legislative goals in other areas. Among them: denying any college athlete employee status under the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA). By circumventing courts, which typically analyze FLSA employee status claims by determining the “economic reality” of the relationship,[4] those who seek to enact the NCAA’s legislative agenda look to do so through agency and congressional action.

I. Executive Order 14322: “Saving College Sports”

On July 24, 2025, Donald Trump took the first step towards cementing the NCAA’s status quo by signing a sweeping Executive Order titled “Saving College Sports.”[5]The Executive Order initiates several major legal changes for which the NCAA has long been lobbying, including an exemption from antitrust laws. The exemption would be extremely beneficial to the NCAA, as the Sherman Antitrust Act has been the primary basis for college athlete plaintiffs’ suits that challenge unlawful NCAA practices.

“Employee status under the FLSA and the NLRA is the only way to ensure that all athletes are provided a baseline of compensation and legal protections in exchange for the immense value they create for their universities and the NCAA.”

The Executive Order also directs the Department of Labor (DOL) and the National Labor Relations Board (NLRB) to “determine and implement the appropriate measures with respect to clarifying the status of collegiate athletes . . . .” The movement to win compensation for athletes’ labor has increasingly employed a variety of tactics, that includes arguing they are employees of their universities, their athletic conferences, or the NCAA under the FLSA and the NLRA.

Crucially, the benefits that come with the legal designation of ‘employee’ would apply to entire classes of college athletes, not just those with whom universities choose to contract. If athletes were determined to be employees of their universities under the FLSA, they would be entitled to minimum wage and overtime payments. If athletes were determined to be university employees under the NLRA, they would have the right to form a union to collectively bargain with their schools and legal protections against unfair labor practices. Employee status would provide baseline financial benefit and legal protections for all athletes classified as such regardless of their gender, sport, position, or spot on the depth chart.

Preventing college athletes from being classified as employees under either the FLSA or the NLRA is a longstanding legislative priority of the NCAA, but the urgency has increased drastically in the last year following the Third Circuit’s ruling in Johnson v. NCAA.[6] In Johnson, the Third Circuit became the first federal appellate court to allow a class of college athletes’ FLSA claim to progress past the summary judgment stage. The court also created a first-of-its-kind four-factor test to analyze whether college athletes are employees under the FLSA. According to the Johnson test, college athletes “may be employees under FLSA when they (a) perform services for another party, (b) ‘necessarily and primarily for the [other party’s] benefit,’ (c) under that party’s control or right of control, and (d) in return for ‘express’ or ‘implied’ compensation or ‘in-kind benefits.’[7] While athletes’ FLSA claims have not yet been analyzed under the new Johnson test, the test appears favorable to the eplaintiffs’ position that they are employees of their universities. The NCAA, the Trump Administration, and House Republicans have responded to the Johnson decision by attempting to prevent athletes from being classified as employees by circumventing the judicial process to avoid recognizing the Johnson test as the proper framework for analyzing college athletes’ FLSA claims.

II. DOL and NLRB Guidance

The executive order is certainly correct about one thing –– both the DOL and the NLRB’s guidance on the status of college athletes is sorely outdated. But any update to that guidance should recognize, rather than cover up, the true nature of the relationship between athletes and their universities.

Currently, the DOL’s Wage & Hour Division (WHD) relies on internal guidance in its Field Operations Handbook (FOH) which states that participation in college athletics does not establish an employment relationship between athletes and their universities.[8] This guidance, unchanged since 1993, does not reflect the dramatic changes that have reshaped the college sports landscape over the past three decades. While the DOL’s guidance on the issue is sorely in need of updating, that should come in the form of adopting the Third Circuit’s Johnson test as the proper means of analyzing athletes’ status.[9] Any potential DOL guidance that would seek to fortify the exclusion of college athletes from FLSA employee status would necessarily ignore the Johnson test, which is the only existing judicial framework tailored to analyzing college athlete’s claims to FLSA employee status.

Unlike any the DOL guidance that would update the agency’s existing, yet out of date, position, NLRB guidance issued pursuant to Trump’s draft executive order would fill a vacuum at the agency. In the last eight years, the NLRB has gone back-and-forth on whether college athletes are employees under the NLRA. The current vacuum on NLRB guidance has existed since February 14, 2025, when Acting General Counsel William Cowen rescinded then-General Counsel Jennifer Abruzzo’s 2021 memo classifying college athletes as employees under the NLRA. The Board’s General Counsel had taken such a position once before, when then-General Counsel Richard Griffin issued a similar memo in 2017. This memo was then rescinded later that year by General Counsel Peter Robb. As General Counsels have gone back and forth on the issue, the Board has never addressed when college athletes are properly classified as employees under the NRLA. In the 2015 case Northwestern University, 362 NLRB 1350 (2015), the Board declined jurisdiction over scholarship football players and refused to determine whether any class of college athlete (scholarship versus non-scholarship, revenue generating versus non-revenue generating, or Division I versus Divisions II and III) are employees under the NLRA.

Crucially, the executive order does not order the DOL or the NLRB to issue a specific finding that college athletes either are or are not employees. That decision will ultimately be made by the Secretary of Labor and the NLRB or its General Counsel. Certainly, the Trump’s intent is for the DOL and the NLRB to shut off any hope of college athletes being classified as employees, as evidenced by the order’s direction to “maximize the educational benefits and opportunities provided by higher education institutions through athletics.” The focus on educational benefits has long been a way for the NCAA and universities to misclassify so-called “student athletes” as amateurs. Further, the executive order seeks to prohibit “pay-for-play payments,” albeit from third-parties rather than from universities. That said, each agency has an opportunity to act independently here to properly classify athletes under its respective governing statute. The Secretary of Labor, Lori Chavez-DeRemer, can, and should, issue guidance adopting the Johnson analytical framework as the proper means of analyzing college athletes’ claims to employee status under the FLSA. The NLRB’s Acting General Counsel, William Cowen, can, and should, issue a memo restoring the Board’s past position that college athletes are employees under the NLRA. Of course, this administration’s history says that each agency will almost certainly use the opportunity granted by the executive order to proclaim that athletes are not employees. Such guidance would be the first step to enshrine the exclusion of athletes from employee status under the FLSA and the NLRA at the behest of the NCAA. 

III. Pending Legislation

While agency guidance finding that athletes are not employees under the FLSA and the NLRA would be extremely detrimental to college athletes, such guidance could likely change with a new administration. Luckily for the NCAA, Congressional Republicans are looking to make the deprivation of athletes’ labor rights permanent. On July 10, 2025, Representative Gus Bilirakis (R-FL-12) introduced H.R. 4312 – “To protect the name, image, and likeness rights of student athletes and to promote fair competition with respect to intercollegiate athletics, and for other purposes,” known as the Student Compensation and Opportunity Through Rights and Endorsements (SCORE) Act. Along with provisions aimed at establishing a fair market value for athletes’ NIL and regulating athletes’ ability to transfer universities, the bill includes provisions that the executive order seeks to achieve, namely exempting the NCAA from antitrust laws and preventing athletes from being classified as employees under the FLSA and the NLRA. If passed in its current form, college athletes would likely join the list of workers who are exempted from the FLSA’s minimum wage and maximum hour requirements under the FLSA, codified in 29 U.S.C. § 213(a).

IV. Conclusion

The misclassification of Division I college athletes as amateur “student athletes” under the FLSA and the NLRA prevents all athletes from being compensated for the value they create for their university athletic departments and, especially, the NCAA. It prevents all athletes from having legal regulation of working conditions and limits athletes’ protections against discrimination.[10] Direct NIL compensation authorized by the House settlement is a major step forward for players rights because it allows top athletes to sell their NIL to schools––who have been using it for free––in exchange for potentially massive payouts. But NIL deals are heavily concentrated in football and men’s basketball, and the executive order recognizes the disparate conditions faced by athletes in women’s and “non-revenue-generating” sports.[11] Employee status under the FLSA and the NLRA is the only way to ensure that all athletes are provided a baseline of compensation and legal protections in exchange for the immense value they create for their universities and the NCAA. The Trump Administration has issued an executive order aimed at preventing athletes from being classified as employees, but such agency action is unlikely to be permanent. In turn, Congressional Republicans seek to permanently write college athletes out of laws that should provide them labor protections. If the NCAA gets its way and Congress cements the mischaracterization of so-called “student athletes” under the FLSA and the NRLA, all athletes will be left uncompensated for their labor, which is the foundation of a multi-billion-dollar industry, and without protections that should be afforded to them by law.

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[1] Order Granting Plaintiffs’ Motion for Final Settlement Approval as Modified, House v. NCAA, Case No. 20-cv-03919 CW (N.D. Cal. June 6, 2025).

[2]  NCAA, 2021–22 NCAA DIV. I MANUAL § 12.1.2(a) (2021), https://ncaaorg.s3.amazonaws.com/compliance/sar/d1/2021-22D1_NCAA-Manual.pdf (“An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual: (a) Uses athletics skill (directly or indirectly) for pay in any form in that sport.”). 

[3] See generally Michael H. LeRoy, NCAA Women Athletes and NIL Pay Disparities: Are They Students Under Title IX, Employees Under Title VII, or Both?, 93 U. Cin. L. Rev. 979, 1004–10 (2025).

[4] See Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961).

[5] 90 Fed. Reg. 35,821 (July 28, 2025).

[6] Johnson v. NCAA, 108 F.4th 163 (3d Cir. 2024).

[7] Id. at 180.

[8] See FOH §§ 10b03(e), 10b24(a).

[9] See generally Connor Locke, First & Goal for Labor, Comment, 77 Admin. L. Rev. 437, 467–68.

[10] See generally Michael LeRoy, Harassment, Abuse, and Mistreatment in College Sports: Protecting Players through Employment Laws, 41 Berkeley J. of Emp. & Lab. L., 101 (2021).

[11] In 2024, the NCAA signed a $920 million dollar contract with ESPN to broadcast the women’s basketball national championship and thirty-nine championships in “non-revenue-generating” sports. Steve McCaskill, NCAA and ESPN Agree US$920m Eight-Year Deal for 40 College Sports Championships, Sports Pro Media (Jan. 5, 2024), https://www.sportspromedia.com/news/ncaa-espn-march-madness-basketball-college.