Judge David Porter's concurring opinion in Johnson v. NCAA addresses the employment status of college athletes under FLSA and state laws. Judge Porter expresses general concerns in his concurring opinion and breaks down the difficulty of applying the four-part economic realities test. 

In his concurring opinion, Judge Porter calls for a need to distinguish between revenue-generating athletes who may qualify as employees and those in non-revenue sports who likely do not. He argues for a nuanced approach rather than a one-size-fits-all, stating that “the question presented necessarily invites finding, weighing, and balancing a multitude of as-yet undeveloped facts that will vary widely across many thousands of student-athletes, teams, sports, colleges, and universities.” [1] Judge Porter also highlights potential legal and practical implications of recognizing college athletes as employees, including impacts on tax laws, immigration regulations, and Title IX considerations.

Furthermore, Judge Porter addresses the majority opinion’s lack of clarity and guidance on assessing college athletes under the economic realities test. The test considers four factors when assessing college athletes. It asks if the athlete: (1) performs services for another party (the college or NCAA), (2) necessarily and primarily for the college’s benefit, (3) under the college’s control or right of control and (4) in return for “express” or “implied” compensation or “in-kind benefits.”

Below is a breakdown of Judge Porter’s concerns with applying each of the four prongs of the test. 

(1) Nature of the Work: Whether the individual performs services for another party, in this case, the university or NCAA.

                    i.     Judge Porter argues that the majority's definition of "services" could encompass all team players, potentially categorizing all athletes as employees based solely on their participation. He warns that an athlete’s “contribution in the service of teamwork does not necessarily create an employment relationship.” [1]

(2) Benefit: Are the athletes' activities necessarily and primarily for the benefit of the college? 

                    i.     Judge Porter critiques the majority's view on how collegiate athletes' membership benefits the university, arguing that such benefits are fundamental to team participation rather than indicative of employment. He contends that participating in sports at the collegiate level serves educational purposes and fosters personal growth, factors that extend beyond financial gain for the institution. 

(3) Degree of Control: The extent to which the university controls or has the right to control the athlete's activities.

                    i.     Judge Porter questions whether the university's control over athletes' recruitment, eligibility, and participation should establish them as employees, suggesting these criteria may extend too broadly to the point where even high school athletes could meet this factor. He states that “the players do not act independently of each other and the coaches because, again, team sports are collective actions requiring significant direction and coordination.” [1]

(4) Compensation: Whether the athlete receives express or implied compensation or other benefits.

                    i.     Judge Porter notes lucrative TV deals in top college sports, pointing out that many athletes, especially in non-revenue sports, operate at a financial deficit for their universities. He highlights the need to differentiate between athletes who contribute tangibly to their schools and those whose participation is not a benefit to the school.

Other Considerations as the case moves forward:

·      How different forms of compensation, including indirect benefits like scholarships and facilities use, should influence the determination of employment.

·      How would recognizing college athletes as employees affect international collegiate athlete’s visa status and compliance with immigration laws? International athletes often require specific visas (such as F-1 visas for students) to study and compete in the United States. If deemed employees, would this status affect their eligibility for these visas or potentially complicate their immigration status?

[1] Johnson v. National Collegiate Athletic Association

Bobby Hartwick is a second-year law student at Saint Louis University School of Law. He can be found on Twitter @BobbyHartwick and on LinkedIn (Bobby Hartwick).