Student Athletes as Employees: Should They be Hourly or Salary for Overtime Calculation Implications?
By Alexandra Peterson; Photo Credit: Jae C. Hong/AP
In 2024, The Third Circuit Court of Appeals officially ruled in Johnson v. National College Athletic Association that college athletes may be considered employees under the Fair Labor Standards Act (FLSA).[1] While this seems like a win for student athletes, there are important legal implications that come along with FLSA coverage that athletes and institutions will have to grapple with going forward if they are classified by their institution as “employees.”
One of the most important protections FLSA affords employees is overtime pay regulation. Specifically, the FLSA states, employees must receive overtime pay for hours worked over 40 per workweek and “at a rate not less than one and one-half times the regular rate of pay.”[2] This is where legal implications might start to complicate things for student athletes. Practically, how should this requirement be implemented into college athletics? The Supreme Court has said that besides typical working hours, employees must also be paid for any and all time spent in physical or mental exertion controlled by the employer and pursued “necessarily and primarily for the benefit of the employer of his business.”[3] Will athletes have to keep track of and record every moment spent practicing their sport, lifting weights, or even time spent watching film or brainstorming plays before upcoming games? Not only that, but will time spent in team meetings and at team bonding exercises count as time worked as well since this is primarily for the benefit of the institution’s athletic success? All of these activities would appear on their face to fit into the practical meaning of hours worked or waiting to work under the FLSA when pertaining to a sport as the business.[4]
Other than grappling with which activities to record as hours worked, another pressing issue will be figuring out how to keep track of all of these student athletes’ hours. Will students need to start filling out timecards or punching in and out of the facility to keep track? How will time be counted while traveling for away games?
While these overtime regulations apply to hourly employees, there are some exemptions. “Executive, administrative, or professional” employees that are paid on a salary basis are exempt from both the minimum wage and overtime provisions of the FLSA.[5] However, there is a minimum salary that needs to be met as well as other requirements to qualify for one of these exemptions.[6] Therefore, moving forward, institutions that end up classifying their athletes as “employees” will need to do some deep analysis into these numbers when deciding whether it is more beneficial to them and their athletes to pay them as hourly workers or provide them with a salary hefty enough to meet the FLSA exemption requirement.
Alexandra Peterson is a second-year student at Vanderbilt Law school from Las Vegas, Nevada. After graduation, she will be moving to Boston and planning to focus on employment and labor law.
[1] Johnson v. Nat’l Collegiate Athletic Ass’n, 108 F.4th 163, 180 (3d Cir. 2024).
[2] 29 U.S.C.A. § 207.
[3] Tennessee Coal, Iron & R. Co. v. Muscoda Loc. No. 123, 321 U.S. 590, 598 (1944).
[4] 29 U.S.C.A. § 203.
[5] 29 U.S.C.A. § 213.
[6] 29 C.F.R. § 541.600.