As it scrambles to try to preserve the old model of college athletics.
Tomorrow’s hearing takes place in federal court in Philadelphia, in the case of Johnson v NCAA (Johnson was a football player at Villanova, thus the Philly setting). Johnson and the other plaintiffs are arguing that college athletes should be treated just like any other student employees at a school. If a student works in the library or the cafeteria – or cleans up the stadium after the football game – she gets an hourly wage and is entitled to overtime. Athletes don’t and aren’t (yet).
Basically, the NCAA asked a lower level federal judge to throw this case out because previous court cases determined that college athletes are not employees. He declined, and the NCAA appealed that ruling to the higher level circuit court, which is where tomorrow’s hearing will be. There won’t be a decision made tomorrow, but the questions from the three-judge panel to attorneys for both sides will give an indication what they’re thinking. The court has already asked both sides to prepare to discuss the implications of this case for Title IX.
The NCAA is basing its defense on a case in which – get this – a court ruled it was legal not to treat prison inmates who do work as part of their sentence as employees, because the 13th Amendment says slavery for inmates is legal. Does anybody else think that’s a really tone-deaf way to make their case?
Lingering over this is the Supreme Court ruling in the Alston case in 2021, in which the justices signaled that they’re not satisfied with the status quo in college athletics.
If the ruling after tomorrow’s hearing goes against the NCAA, they could appeal immediately to the Supreme Court. Which doesn’t have to take it, but given that it would have multiple court rulings related to the same issue with different results, SCOTUS would be more likely to take the case. And Alston suggests the NCAA may not like the result if it does.