By Mark Mehochko; Photo Credit: Ian Walton / Getty
Every four years, the strength and athleticism on display at the Olympic Games generates billions of dollars in revenue.[1] Yet, many Olympians live below the poverty line.[2] The United States Olympics and Paralympics Committee (USOPC) does not provide stable compensation to its athletes; despite athletes providing their labor to the USOPC.[3]
The state of compensation for Olympic athletes is similar to the state of compensation for college athletes. College athletes draw in billions of dollars in revenue for their schools, but are not compensated for it as a traditional laborer would be.[4] This compensation structure may change, however, as the 3rd Circuit held in Johnson v. National College Athletic Association that college athletes may be employees under the Fair Labor Standards Act of 1938 (FLSA).[5] Given the similarities between college athletes and Olympians, a court may find that Olympians also constitute employees under the FLSA and are entitled to compensation.
On remand to the Eastern District of Pennsylvania, the 3rd Circuit gave a four-factor test for determining whether a student athlete is an employee under the FLSA.[6] “College athletes may be employees under the FLSA when they (a) perform services for another party, (b) “necessarily and primarily for the [other party’s] benefit,” (c) under that party’s control or right of control, and (d) in return for “express” or “implied” compensation or “in-kind benefits.”[7] Ultimately, however, the touchstone for determining whether there is an employee-employer relationship is whether the “cumulative circumstances of the relationship between the athlete and college or NCAA reveal an economic reality that is that of an employee-employer.”[8]
Applying the four factors that the 3rd circuit established for college athletics to Olympians reveals a clear employee-employer relationship.[9] Professional athletes have long been considered to be performing services for their respective teams, there is no reason that Olympians should be any different.[10] In addition, it is obvious that Olympians are necessary to the Olympics, and provide a benefit to the USOPC in revenue generation.[11] The USOPC also has control over the athletes performance and dictates which athletes will compete in the Olympics.[12] Finally, Olympians do expect compensation or benefits, in the form of medal bonuses for winning events and recognition on the world stage.[13] When weighing these factors, it seems likely that the economic reality of the relationship between the Olympians and the USOPC is one of employee to employer.[14] Therefore, Olympians should be entitled to steady compensation for their work under the FLSA.
Olympians represent our country on the world stage of athletics, and they deserve to be compensated for their labor. Not only is it the law, it’s simply the right thing to do.
Mark Mehochko is a candidate for a Juris Doctorate at Vanderbilt Law School. He is especially interested in intellectual property and labor law in entertainment and sports.
[1] Sherif Farrag, Olympians As Laborers: How Unionizing Can Help Athletes Bargain for Compensation and Better Structural Support, 32 Fordham Intell. Prop. Media & Ent. L.J. 689, 693 (2022).
[2] See id; Heather Skold & Chelsea Brenzel, Olympic Athletes Live in Poverty While Executives get Rich, Federal Report Finds, KRDO (Mar. 24, 2024), https://krdo.com/news/top-stories/2024/03/13/olympic-athletes-live-in-poverty-while-executives-get-rich-federal-report-finds/.
[3] Sherif Farrag, Olympians As Laborers: How Unionizing Can Help Athletes Bargain for Compensation and Better Structural Support, 32 Fordham Intell. Prop. Media & Ent. L.J. 689, 693 (2022) (“Even though their performances in a globally televised sports extravaganza create billions of dollars in revenue, many athletes are close to poverty. The reason lies in the compensation system that the International Olympic Committee (“IOC”) uses to pay athletes. The system can be summarized in a few words: there is not one.”).
[4] Johnson v. National College Athletic Association, 108 F.4th 163, 167 (3d Cir. 2024); Farrag, supra note 1.
[5] 108 F.4th 163, 180 (3d Cir. 2024).
[6] Id.
[7] Id.
[8] Id.
[9] See id; Farrag, supra note 1.
[10] Johnson 108 F.4th at 178 (“[W]ith professional athletes as the clearest indicators, playing sports can certainly constitute compensable work.”).
[11] Skold & Brenzel, supra note 2.
[12] Farrag, supra note 1 at 170.
[13] Skold & Brenzel, supra note 2.
[14] See Johnson, 108 F.4th at 180.
