A recent decision by a Third Circuit Court regarding the eligibility of student-athletes to be considered “employees” has upheaved much of the collegiate athletics landscape. The court, in response to an interlocutory appeal, has decided that collegiate athletes are justified in bringing a Fair Labor Standards Act (FLSA) claim, potentially providing an opportunity, depending on future decisions, for student-athletes to be recognized as employees of their respective universities.1
But this being said, how exactly college athletics will be transformed by this decision is by no means clear. The Court’s decision simply allowed for FLSA claims to be brought; there was no sweeping decision that would affect every university equally. Indeed, with such a massive gray area, decisions may come down to individual schools.2
For instance, if students are determined to be eligible for wages or some form of monetary compensation, there is the question of the distribution of that payment. The U.S. Department of Education has confirmed that title IX, which essentially prohibits any form of discrimination on the basis of sex in educational activities or programs, will apply to whatever, if any, wages athletes receive3 (ESPN). This means that should student-athletes be given payment for their services, that payment must be equal between male and female athletes. The difficulty for these schools is that for many of them, their male sports program has significantly larger budgets, and bring in far more revenue, than their female sports programs. If universities continue with these policies, and pay their male athletes more than their female athletes, they risk violating title IX, and opening themselves up to massive lawsuits4. At the same time, some universities fear that if they pay male athletes the same as female athletes, the school will lose out on recruiting opportunities for male-dominated sports, such as football5. In 2022, the U.S. Secretary of Education, Miguel Cardona, noted these problems, explaining, “Some of the concerns I have is that it’s going to be the male athletes getting paid and [the] just-as-committed, just-as-hard-working women athletes, not.”6
The biggest question is what will happen next in this saga. Recently, there have been a flurry of cases concerning athletics in higher education, and it may be some time before the dust settles. As of now, nothing seems permanent.