A case that may signal the continued erosion of the amateur status of college student-athletes will continue as the action in Ralph “Trey” Johnson et al. v. NCAA has survived the defendants’ motion to dismiss the complaint.

U.S. District Court Judge John Padova allowed the six student-athlete plaintiffs’ claims against Villanova, Fordham, Sacred Heart, Cornell and Lafayette to proceed as he concluded  the schools had failed to show at this stage of the litigation that the student-athletes were not employees. The student-athletes brought their claims as a proposed collective or class action. They seek to be classified as employees pursuant to the Fair Labor Standards Act (FLSA) and state labor laws and be entitled to paid minimum wage.

Judge Padova’s 30-page order discussed familiar arguments made by the plaintiffs’ attorney Paul McDonald in Berger v. NCAA, a 2016 case decided by the U.S. Court of Appeals for the Seventh Circuit. In Berger, the Seventh Circuit rejected the “employee” argument, concluding the amateur status of college athletes prevented their classification as employees of their individual schools. Judge Padova rejected the schools’ argument that the student-athletes are enrolled as students and do not perform functions of an employee.

Judge Padova distinguished Berger and referred to the recent U.S. Supreme Court decision in NCAA v. Alston,

which rejected the argument that student-athlete compensation for educational benefits should be limited. He further rejected the position of the NCAA and the individual schools “that Plaintiffs are not employees entitled to minimum wage pursuant to the FLSA because there is a long-standing tradition of amateurism in NCAA interscholastic athletics that defines the economic reality of the relationship between the Plaintiffs and schools.”

In his analysis, Judge Padova applied the Second Circuit’s Glatt test. This test is used for assessing when an intern should be considered an employee based upon the benefits received and an analysis of seven factors.

The seven factors are:

  1. The interns expected payment for the internship program;
  2. The training in the internship was consistent with what they would have learned in an educational environment;
  3. The internship was for academic credit or was part of the intern’s formal education;
  4. The internship period was consistent with an academic calendar;
  5. The internship duration was for a valuable period;
  6. The interns displaced paid employees through the tasks they perform; and
  7. The interns expected an offer of paid employment following the internship.

Judge Padova stated that under some of the factors, such as whether there was an expectation of compensation or a job, student-athletes would not appear to be employees. He considered two other factors, whether an intern receives training similar to that in an educational environment and the extent to which the internship is limited to the period in which it provides beneficial learning, as neutral.

However, Judge Padova found other Glatt factors suggest the athletes are employees.

These factors included the extent to which: an internship is related to an intern’s education, an internship accommodates an intern’s academic commitments, and the intern complements instead of displaces the work of employees.

“Balancing all of these factors,” Judge Padova concluded, “that the complaint plausibly alleges that plaintiffs are employees of the [schools] under the Glatt test.”

While the denial of the motion to dismiss will allow the action to continue, an analysis of the merits has yet to begin. The standard to oppose a motion to dismiss is much lower than the burden of proof facing the plaintiffs in a potential trial.

Jackson Lewis’ Sports Industry Team will continue to monitor the progress of this litigation and its potential impact on college sports and student-athletes being considered as employees.. Please feel free to reach out to any member of the Team with questions.


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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.