Questions regarding worker protections for collegiate athletes have been simmering for decades: Are collegiate athletes employees of their universities or merely students?1 Should they receive workers’ compensation for injuries?2 Can they unionize?3 But these questions have taken on renewed life in a world where student athletes generate billions of dollars for universities and private companies.4 Now, courts and Congress scrutinize intercollegiate athletics,5 and recently, student athletes have won a series of legal and policy victories.6 It is in this context that Radwan v. Manuel7 can be seen as a potential legal toehold for advocates seeking employee classification for student athletes. On its face, the decision in Radwan is a significant victory for gender equality, expansively interpreting disparate treatment doctrine in the context of Title IX of the Education Amendments Act of 1972.8 However, less discussed is the court’s dicta analyzing the First and Fourteenth Amendment claims that may imply that employment law has particular relevance to the relationship between a student athlete and their college.
On November 9, 2014, the University of Connecticut (UConn) women’s soccer team won its first-ever conference championship.9 At the referee’s whistle, the players rushed the field — screaming, embracing, and celebrating the penalty-kick victory.10 In the heat of the moment, UConn freshman and one-year athletic scholarship recipient11 Noriana Radwan raised a joyful middle finger to a TV camera.12 ESPNU televised the bird, and a yearslong legal battle took flight.13
Radwan was subsequently suspended from all team activities.14 And, in December — weeks after Radwan’s coach asked that she improve her fitness and grades for the upcoming spring season15 — the remainder of Radwan’s full scholarship was canceled because her gesture was “an embarrassment” to UConn.16 Radwan’s scholarship “covered the cost of tuition, fees, room, board, and course-related books,” had a set term of one year, and could be “immediately reduced or canceled during the term of [the] award if” Radwan “engage[d] in serious misconduct that [brought] substantial disciplinary penalty.”17 The letter revoking her scholarship thus indicated the reason was for “serious misconduct.”18
Radwan sued UConn (through its Board of Trustees) and university officials, alleging that UConn had violated Title IX by terminating her scholarship on the basis of sex.19 She also alleged violations of her free speech, equal protection, and procedural due process rights under 42 U.S.C. § 1983.20 The district court granted summary judgment to UConn and its officials on Radwan’s First and Fourteenth Amendment claims.21 Meanwhile, the district court held there was no genuine issue of material fact about whether UConn’s treatment of female athletes constituted sex discrimination under Title IX.22 Radwan appealed.23
The Second Circuit affirmed in part and reversed in part.24 Writing for the panel, Judge Bianco25 found a triable issue of fact as to whether Radwan’s scholarship was illegally terminated because of her sex.26 Specifically, Radwan had sufficiently detailed the ways in which misconduct by male athletes at UConn was not punished to the same degree.27 Whereas the district court found that Radwan was not “similarly situated” to male athletes because she was not disciplined by the “same decisionmaker,”28 the Second Circuit rejected this interpretation. It recognized the structure of sex-segregated athletic teams where male and female athletes often have different coaches and discipliners, and thus could hardly ever be “similarly situated” under a “same decisionmaker” test.29 The court vacated the Title IX judgment and remanded.30
Judge Bianco invoked qualified immunity and upheld the lower court’s grant of summary judgment to defendants as to the due process claim.31 But, notably, he held that a one-year athletic scholarship constituted a constitutionally protected property interest for two reasons32: First, the scholarship “was for a set term of one year, terminable only for cause.”33 Thus, the scholarship was analogous to contracts in the “employment context,” which may constitute protected property interests where an employee has for-cause employment protection or otherwise expects their employment relationship to continue for a set period.34 Second, Radwan’s reliance on the scholarship was significant: it was “her exclusive source of funding for housing, college tuition, and books.”35 What’s more, “an athletic scholarship is the result of years of practice and dedication,”36 constituting the “dependence” and “permanence” needed to create a constitutionally protected property interest.37 Nonetheless, the court granted qualified immunity because the constitutional holding was not clearly established at the time Radwan’s scholarship was terminated.38 Thus, the court did not decide whether the process afforded to Radwan was sufficient.39
The court also upheld on qualified immunity grounds the district court’s summary judgment findings on the First Amendment claim.40 Though the Second Circuit summarized “some basic tenets of First Amendment law”41 and their application in the university setting specifically, the court did not reach any constitutional holdings.42 Instead, the Second Circuit concluded that students’ free speech rights in the collegiate setting were not clearly established in this context.43
Although Radwan’s immediate significance lies in its expansion of Title IX protections for student athletes, the case’s dicta are also important for the groundwork they lay in explicating the potential employment relationship between athletes and their universities. Even though the circuit court denied Radwan’s First and Fourteenth Amendment claims, the court’s opinion may help bolster arguments for student athletes who seek employment protections, such as minimum wage and overtime pay, under the Fair Labor Standards Act of 193844 (FLSA).
The debate over whether student athletes qualify as “employees” under the FLSA is ongoing. Prior to the Supreme Court’s 2021 watershed antitrust decision in National Collegiate Athletic Ass’n v. Alston,45 two federal appellate courts had decided that student athletes were not “employees” under the FLSA.46 But, in Alston, the Supreme Court eliminated as an illegal restraint of trade the restriction of the National Collegiate Athletic Association (NCAA) on student athletes receiving education-related benefits.47 While the ruling’s immediate impact was “rather modest,”48 the decision “la[id] the groundwork for a successful future challenge to the NCAA’s restrictions on compensation unrelated to education.”49 Indeed, Justice Kavanaugh noted that the reasons for not paying student athletes are “circular and unpersuasive.”50 With this decision, student athletes became newly empowered to seek compensation and other piecemeal work benefits afforded through antitrust, employment, and labor laws.51 Now, the Third Circuit is considering their FLSA status.52 A favorable decision in the Second Circuit could force or further a circuit split.
Under the FLSA, an “employee” is “any individual employed by an employer,”53 where an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency,”54 and “employ” means to “suffer or permit to work.”55 To determine whether an individual is an “employee,” the Second Circuit applies an economic reality test where “the overarching concern is whether the alleged employer possessed the power to control the workers in question.”56 Four factors are considered but neither exclusive nor dispositive57: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.”58 Moreover, a court should assess a potential employer-employee relationship based on “‘economic reality’ rather than ‘technical concepts.’”59
The Second Circuit’s Fourteenth Amendment analysis in Radwan recognized key economic realities of college athletics. First, the due process analysis supported the argument that athletic-scholarship recipients qualify for recognition under an economic reality test in general.60 Whereas most other courts have not readily found general property interests in the student-athlete context,61 the Second Circuit declared a constitutional property interest in fixed-period scholarships terminable for cause.62 As detailed above, the Second Circuit emphasized Radwan’s “level of dependence” on and “the unique nature of” her athletic scholarship.63 It recognized her scholarship as something more than just a source of educational funding but rather something that was both “of significant value to her future education and professional opportunities”64 and earned after “years of practice and dedication.”65 Thus, in Radwan, the court recognized the extent to which student athletes sacrifice to reach and play at the collegiate level. And, in so doing, student athletes’ academic “livelihood” becomes dependent on the ability of their athletic scholarships to finance it. Indeed, this reliance on an athletic scholarship, the court noted, may “even . . . go further than [the reliance accompanying] an average employment contract.”66
Evidence beyond Radwan’s case bolsters the court’s conclusion. In 2016, the NCAA surveyed Division I student athletes and found that one-third “reported having concerns about how their finances would impact their ability to complete their degree,”67 with an even greater percentage of respondents saying that “quitting their sport would make staying at their current college a problem financially.”68 Meanwhile, the labor expended and services provided by college athletes generate billions of dollars. In 2021, the NCAA earned $1.15 billion in revenue, which was largely distributed back to its member schools.69 The economic dependence between student athletes and their schools is mutual.
Second, the due process analysis illustrated the nature and degree of “employer” control over student athletes.70 The court’s discussion of Radwan’s scholarship relied heavily on analysis in “the employment context,”71 drawing parallels between a scholarship and an employment contract. This analysis implicitly recognized a coach’s ability to effectively hire and fire an athlete and determine the rate and method of payment in a decision regarding whether or not to renew a scholarship.72
Meanwhile, the court’s First Amendment analysis might speak to the second prong of the economic reality test.73 The court distinguished Radwan from other First Amendment precedent on the basis of Radwan’s role as a student athlete and university representative: “Here, there is no indication that [UConn] would have taken any disciplinary action . . . had [Radwan] displayed the middle finger in some other university setting . . . .”74 Instead, UConn exercised its control of Radwan’s expressive conduct “as an athlete on the university’s sports team, wearing the university’s jersey, during a university sports event.”75
The court’s analysis implicitly distinguished the role of an athlete and a student. In elevating and describing responsibilities of a student athlete, the Second Circuit’s reasoning suggested — but did not explicitly invoke — the Supreme Court’s Connick–Pickering76 free speech balancing test, which recognized that a public employee’s speech rights must be balanced with the interests of the state as an employer.77 As to employer interests, the Court has underscored that “the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.”78 In this manner, the Second Circuit’s First Amendment analysis in Radwan suggested that, just like a public employer’s control over an employee, a public university may well be able to control a student athlete’s speech.
The court did draw distinctions between athletes and employees in its Title IX analysis.79 Thus, one might argue that the court’s Title IX analysis undercuts its other employment analogies, and Radwan does not signal any interest in finding that athletes should be afforded employment protections. But the court distinguished the athletic context from the employment context for the purpose of applying a judicial test. Nothing in the court’s disparate treatment analysis under Title IX spoke to the economic reality test and the nature of the “employer-employee” relationship between college athletes and their universities, and so it does not foreclose an argument under the FLSA.
Even if the reasoning in Radwan helped establish the building blocks toward satisfying the FLSA’s definition of “employee,” there is a risk that student athletes will be analogized to certain nonprotected classifications.80 For example, in Johnson v. National Collegiate Athletic Ass’n,81 the Eastern District of Pennsylvania considered the student-athlete-classification question by analyzing the Second Circuit’s test for interns82 under Glatt v. Fox Searchlight Pictures, Inc.83 The Glatt court considered whether an intern or an employer is the “primary beneficiary” of the relationship by looking at a nonexhaustive set of factors.84 But student athletes may have greater ease in demonstrating they are not interns, particularly once Radwan is invoked to help overcome the traditional understandings of college athletics and uncompensated labor. The Eastern District of Pennsylvania, for example, found in favor of student athletes even after applying Glatt.85
Regardless of whether the Second Circuit intended to indicate its predilections in the debate, advocates of student-athlete compensation would be remiss to ignore Radwan and the potential toehold the court provided in the debate moving forward. As courts continue to draw doctrinal analogies to employment law in areas of law such as the First Amendment and due process, the theoretical and doctrinal distinctions between student athletes and employees may soon become untenable — causing ripple effects, not just for FLSA benefits but also for other employment law protections as well.86