Practical Explainer | September 12, 2026

“Are college athletes employees?”

It sounds like a yes-or-no question.

Legally, it is closer to five different questions wearing the same name.

A basketball player might qualify as an employee under federal labor law for purposes of organizing a union. A football player might separately argue that he is an employee entitled to minimum wage under the Fair Labor Standards Act. A state workers’ compensation system might apply a different definition after an injury. The IRS may ask its own classification question when deciding whether school payments belong on a W-2.

And one answer does not necessarily decide the others.

There is no master legal switch labeled “employee.”

That is the most important thing to understand about the college-athlete employment debate. The real question is usually not simply whether an athlete is an employee. It is:

An employee of whom, under which law, and for what purpose?

Calling a college athlete an “employee” can carry very different consequences depending on the legal regime involved.

Each system asks its own questions. Even the identity of the supposed employer matters: the school, conference and NCAA are not automatically interchangeable.

That last point has already mattered in court. In Dawson v. NCAA, for example, the Ninth Circuit held that the NCAA and Pac-12 were not the plaintiff football player’s employers—but specifically noted that the athlete had not alleged USC itself was his employer, leaving that different question unanswered.

The easiest way to understand the issue is through the situations in which “employee” status actually matters.

Now the relevant law is the National Labor Relations Act, or NLRA.

The NLRA gives covered employees rights to organize, form or join unions, bargain collectively and engage in protected group activity concerning working conditions. If a union becomes the athletes’ bargaining representative, the employer generally must bargain in good faith over wages, hours and other terms and conditions of employment.

That could potentially put subjects such as compensation, practice demands, medical protections, discipline, safety and other working conditions on the bargaining table—although whether a particular subject must be bargained can depend on who controls it.

But there is an immediate jurisdictional wrinkle.

The NLRA generally applies to private-sector employers. It expressly excludes states and their political subdivisions, meaning employees of public universities ordinarily do not receive collective-bargaining rights from the federal NLRA. Their rights, if any, instead depend largely on state public-sector labor law.

So athletes at Dartmouth and athletes at Ohio State can confront materially different labor-law frameworks before anyone even asks how much control the school exercises over them.

Dartmouth briefly provided the strongest real-world example.

An NLRB regional proceeding treated the men’s basketball players as an employee bargaining unit, and in March 2024 the players voted 13–2 to be represented by SEIU Local 560. But the union withdrew its petition in December 2024, and the NLRB now lists the proceeding as closed because of that withdrawal.

That distinction matters.

Dartmouth did not produce a final nationwide NLRB holding that all college athletes are employees.

Nor did Northwestern.

In the Northwestern football case in 2015, the NLRB expressly declined to decide whether the players were statutory employees. Instead, it declined jurisdiction, emphasizing the unusual structure of college football and the large number of public universities outside its authority.

And in February 2025, the NLRB’s acting general counsel rescinded an earlier agency memorandum that had taken an expansive position on college-athlete rights under the NLRA. That changed the agency’s prosecutorial guidance; it did not amend the statute or produce a definitive judicial answer.

So, as of 2026, there is no simple nationwide rule saying either “college athletes are NLRA employees” or “college athletes are not.”

That is primarily a wage-and-hour question.

The federal Fair Labor Standards Act—FLSA—requires covered employers to pay covered employees at least the federal minimum wage and generally overtime for hours worked beyond 40 in a workweek, subject to exemptions and other rules.

Here, college sports have produced genuinely conflicting legal signals.

In 2016, the Seventh Circuit held in Berger v. NCAA that the Penn track athletes before it were not FLSA employees. The court emphasized the extracurricular character of college athletics and the historical understanding of student participation.

In 2019, the Ninth Circuit rejected an FLSA claim against the NCAA and Pac-12 in Dawson—but, again, expressly left open the separate question of whether the player could have been an employee of USC.

Then came Johnson v. NCAA.

In 2024, the Third Circuit rejected the idea that the word “amateur” categorically ends the inquiry. College athletes, the court held, may be FLSA employees when they:

The ultimate inquiry focuses on the economic reality of the relationship.

But Johnson did not hold that every Division I athlete is an employee—or even that the particular plaintiffs ultimately were. It held that college athletes cannot be categorically excluded from the FLSA merely because college sports traditionally called them amateurs. The case went back for further proceedings.

That is a much narrower—and much more important—point.

Then another surprisingly difficult question appears:

What counts as work?

A football player's athletics calendar might include lifting, practice, film study, meetings, treatment, travel, games, media responsibilities and required team appearances.

Employment law does not necessarily treat every minute associated with an activity identically. Rules governing training, meetings, travel and other required activities can become important in calculating compensable time.

So employee classification would not end the litigation.

It could merely move the line of scrimmage.

This is where one of the most common misconceptions arises.

Getting paid does not automatically make someone an employee.

After approval of the House settlement, NCAA rules began permitting participating Division I schools to provide athletes with direct settlement-related payments, benefits and expenses subject to the applicable benefits cap. Those rules continue to expressly authorize institutional payments.

That is a major change in the economics of college sports.

It is not, by itself, an answer to the employment question.

Payment is certainly relevant. But employment tests ordinarily also examine the broader relationship—control, the services being performed, the economic arrangement and the particular statutory definition involved.

A school writing a check therefore does not automatically convert every recipient into an employee any more than paying an independent contractor automatically turns that contractor into payroll staff.

The nature of the payment matters too.

Revenue sharing, an athletic scholarship, third-party NIL compensation and wages are not simply interchangeable labels.

Now tax law enters the picture.

The IRS says NIL income is taxable and explains that an athlete paid as an employee generally receives a Form W-2, with federal income taxes and Social Security and Medicare taxes withheld. If the athlete is instead operating as an independent contractor, payments generally may be reported on Form 1099-NEC, with different self-employment consequences. The IRS emphasizes that employee status depends on the facts and circumstances, including the payer’s degree of control.

This creates an important possibility:

Imagine a quarterback who receives:

Even if the university relationship eventually qualifies as employment for tax purposes, that does not automatically transform every outside NIL deal into wages.

The athlete could theoretically receive W-2 income from one relationship and independent-contractor or royalty income from another.

That is why “athletes are getting paid now” is not a useful classification rule.

The better question is always:

Paid by whom, for doing what, under what arrangement?

Now workers’ compensation becomes potentially enormous.

Workers’ compensation is primarily a matter of state law, not one nationwide federal system. State systems generally provide benefits such as medical care and wage replacement for covered employees injured in connection with their employment, but coverage and definitions vary by jurisdiction.

If college athletes qualify as employees under a particular state’s system, athletics injuries could potentially become workplace injuries.

For athletes, that could create access to statutory medical and disability benefits.

For schools, there can be another side to the bargain: workers’ compensation systems frequently limit an employee’s ability to pursue ordinary tort remedies against a covered employer for the same workplace injury. The precise rule varies by state.

That makes employment status unusually complicated in the injury context.

The status that creates a new remedy for the athlete can also eliminate another one.

And state legislatures can intervene directly.

Ohio, for example, currently provides that a college athlete is not an employee of the institution based upon either participation in the athletic program or the institution compensating the athlete for use of NIL.

Notice the wording: “based upon.”

That is a good illustration of why state statutes must be read carefully rather than converted into slogans—and why a state classification rule does not necessarily answer a federal FLSA or NLRA question.

“Employee” and “union member” are not synonyms.

First comes employee status under the relevant labor law. Then athletes may have organizing rights. Then there may be an election or other route to representation. Only after a union becomes the bargaining representative does collective bargaining begin.

Under the NLRA, employers and unions bargain over subjects such as wages, hours and other terms and conditions of employment.

In college sports, that could raise fascinating questions about subjects like:

Not every subject would automatically be a mandatory bargaining topic, particularly where the supposed employer lacks control over the rule.

That points toward one of college sports’ hardest structural problems:

Who is actually the employer?

The university?

The conference?

The NCAA?

Some combination of them?

Employment law has doctrines for situations involving multiple entities, but college sports’ layered governance makes that question unusually consequential.

No.

FLSA employee status primarily creates statutory wage protections such as minimum wage and, when applicable, overtime. A right to minimum wage is not a right to a percentage of television revenue.

Much larger compensation could emerge through contracts or collective bargaining, but that is a separate step.

No.

It changed the compensation system. NCAA rules now permit extensive direct institutional payments. But payment alone does not conclusively resolve employment status.

Too broad.

Dartmouth produced an important regional labor ruling and a 13–2 union vote. The petition was later withdrawn and the NLRB proceeding closed. It did not produce a final nationwide Board rule.

No.

The NLRA excludes states and political subdivisions. Athletes at public universities ordinarily must look to applicable state labor law rather than the NLRB.

This may be the biggest misconception of all.

The NLRA, FLSA, tax laws, workers’ compensation statutes and other employment laws have different definitions, purposes and coverage requirements.

An athlete can therefore win one classification fight without necessarily winning the next.

The employee debate is sometimes reduced to one question:

Do players get salaries?

That misses most of the story.

Depending on the governing law, employee status could affect:

For athletes: wages, collective bargaining power, workplace protections, injury benefits, tax treatment and legal remedies.

For schools: payroll systems, tax withholding, workers’ compensation premiums, timekeeping, bargaining obligations, compliance infrastructure and potentially liability.

For conferences and the NCAA: joint-employer theories, whether national rules conflict with collectively bargained terms, and how a national governance system operates when different schools fall under different labor regimes.

For agents and advisers: contract structures, NIL planning, union representation rules and the increasingly important distinction between athletics compensation and commercial NIL income.

It could also cause other bodies of employment law to enter the conversation—anti-discrimination statutes, disability law, unemployment insurance, employee benefits and others. But each comes with its own coverage rules. There is no automatic package of every employment right the moment one tribunal uses the word “employee.”

Three developments deserve particular attention.

First, Johnson and other wage-and-hour litigation will continue testing whether modern college athletics still fits older assumptions about extracurricular participation—especially now that schools directly compensate athletes.

Second, the federal regulatory framework remains unsettled. The Department of Labor proposed a new independent-contractor framework in February 2026 and says it is no longer applying its 2024 rule in investigations while that rulemaking proceeds. Courts ultimately apply the governing statute and controlling precedent, so the classification analysis remains highly jurisdiction-dependent.

Third, Congress could eventually alter the landscape—but current legislation illustrates just how politically difficult the employee question has become. The revised Protect College Sports Act moving through Congress expressly says the legislation is neutral on college athletes’ employee or non-employee status rather than resolving it.

That may be the clearest evidence of all that the debate is not finished.

There is no universal nationwide answer. The result can depend on the statute involved, the jurisdiction, whether the institution is public or private, the identity of the alleged employer and the facts of the athlete’s relationship with that entity.

Not automatically. Compensation is relevant, but employment tests generally consider additional factors such as services performed, control and the overall economic relationship.

Potentially. Athletes at private universities may seek rights under the NLRA if they qualify as statutory employees. Public-university athletes generally depend on applicable state labor law instead.

Not inherently. An athlete could have an employment relationship with a school while separately entering genuine commercial NIL agreements with outside businesses. The tax and legal treatment of the two revenue streams may differ.

Not necessarily. Johnson itself highlights why facts matter. The economic relationship surrounding a Power Four football player may look very different from the relationship surrounding an athlete in another sport, at another school or under another compensation arrangement.

The phrase “college athletes are employees” sounds much more definitive than the law actually is.

Employment status is not one question. It is a collection of questions asked for different reasons by different statutes.

The NLRA asks whether athletes have federal labor rights.

The FLSA asks whether they are workers entitled to wage protections.

Tax law asks how compensation should be classified and reported.

Workers’ compensation law asks whether an athletic injury is also a workplace injury.

And each system can reach its own answer.

That is why the most useful question in the college-athlete employment debate is no longer:

“Are they employees?”

It is:

“Employees of whom, under which law, and what changes if the answer is yes?”

Once you ask it that way, the entire debate becomes easier to understand.