The NCAA and schools are continuing to employ tactics to get a potentially watershed case, Johnson v. NCAA, thrown out before it reaches the discovery phase. 

The case, first filed in 2019, argues that college athletes should be considered employees under the Fair Labor Standards Act. If found in favor of the athletes, the case could invalidate the amateurism model.

• Recently, a Pennsylvania judge denied the NCAA and schools’ motions to dismiss the case, finding that the plaintiffs’ claim could have merit. 
• But now, the schools and NCAA are asking the judge to allow a higher court to re-examine the decision to deny their motion to dismiss, Boise State law professor Sam Ehrlich told FOS.
• “It’s kind of a bold move,” he said. It’s “like going to your professor and saying, ‘Hey, I don’t agree with your decision in this grading…so can I appeal it to someone? Who can I appeal it to?’”

The schools noted two previous cases where courts found that athletes aren’t considered employees. They also claimed the Alston decision doesn’t apply to the Johnson case because it ruled on whether athletes could receive educational benefits — not salaries as employees.  

Athletes’ lawyers disputed this, of course. The Alston decision and the NLRB have “made it clear that the NCAA’s antiquated (and frankly, offensive) notion that it does not have to pay student-athletes despite making billions of dollars through their efforts is no longer legally permissible,” their response said.

NLRB memos aren’t considered law, and don’t hold the same weight as something like a Supreme Court decision, Ehrlich said. But in the Johnson case, athletes’ lawyers are using the latest memo “in a key way.”

The NLRB memo — published just two weeks ago — says that some athletes should be considered employees who can unionize and receive other worker protections. 

It gave athletes new ammunition in the Johnson case to establish why the NCAA and schools shouldn’t be able to classify them as “amateurs.”

• The Johnson case rests on athletes’ employee status under the Fair Labor Standards Act, one of two statutes that govern employment law, Ehrlich explained.
• But the NLRB’s memo says athletes are considered employees under the National Labor Relations Act — which has a much stricter definition of what it means to be an employee, he said.
• “Given the fact that the definition of an ‘employee’ is even broader under the FLSA than it is under the NLRB, this is merely further evidence that the Attended Schools” arguments are “untenable,” the response said.

Where does the case go next? The athletes made it clear that if they lost, they would continue appealing up to the Supreme Court. 

The NCAA has a long history of appealing unfavorable decisions as far as the court system would let them. Expect them to continue doing so, too.