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Last week, my very-much-not-a-lawyer self wrote that I believed the NCAA could feel like they “won” the initial ruling in Johnson, even if the overwhelming majority of the decision’s text expressed deep skepticism of the NCAA’s legal strategy. I made that analysis primarily over political considerations, not legal ones.

Today, we’re happy to welcome back Friend of the Newsletter Sam C. Ehrlich, a law professor at Boise State University. Sam wants to explain the nuts and bolts of the decision, how it sets the stage for future legal battles, and more. I’ll turn the time over to him.

As has been widely reported by now, the Third Circuit Court of Appeals on Thursday finally (after fifteen months!) issued their decision in Johnson v. NCAA.  In doing so, they (basically) found that college athletes cannot be precluded from being found as employees under the Fair Labor Standards Act (FLSA)—the federal law that requires employers to pay a minimum wage and overtime to their employees.

Matt had a great piece on this decision with some of his initial thoughts on the decision on Friday.  My role here will be to take his serve and spike it, providing some additional context behind why this was such a monumental decision beyond just “college athletes may be employees.”

In doing so, I’m actually going to break away and disagree with Matt on a few key points.  While I do agree with Matt that this definitely buys some much needed time for the NCAA to continue their lobbying efforts—and that if their lobbying efforts pay off all of this is basically moot—I wouldn’t go so far as to say that this decision was anything close to a win for the NCAA.

In fact, I see it as a pretty major setback for the NCAA’s legal strategy—and one that could be compounded depending on how exactly it is read by other judges, including the instant lower court judge, in the near future.  A lot of the reporting on this case (including some of my own initial thoughts) unduly lumped two distinct parts of this opinion: the majority opinion written by Judge Restrepo (and fully joined by Judge McKee), and the concurring opinion by Judge Porter, as these two opinions each offer starkly disparate views of college athlete employment.  But reading between the lines a bit of the majority opinion and contrasting it with the much more direct (and arguably NCAA-friendly) concurrence by Judge Porter, there’s a lot to be worried about if you’re the NCAA.

A shift from “Can athletes be employees?” to “Which athletes are employees?”

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