Again Ninth Circuit Unlikely to Revive Lamar Dawson’s Lawsuit

On October 15, 2018, attorneys representing Lamar Dawson, a linebacker who played for the University of Southern California between 2011 and 2015, attempted to revive a proposed class action lawsuit against the NCAA and the Pac-12 Conference. According to Dawson’s attorneys, the NCAA and the Pac-12 Conference should be considered employers of college football players, because they set limits on pay and work hours, within the meaning of the Fair Labor Standards Act (FLSA). Dawson’s attorneys are seeking to reverse U.S. District Judge Richard Seeborg’s decision that NCAA athletes play for scholarships and not for expected wages and as such, could not be considered employees within the meaning of the Fair Labor Standards Act.

As we have previously reported, Dawson’s lawsuit began his class-action lawsuit in September, 2016. Dawson alleged that the NCAA and Pac-12 violated California law and the Fair Labor Standards Act by not paying college football players a minimum wage. “The reality of the relationship between the students and the universities they work for is that the athletes deserve to be compensated for the enormous value they bring to the universities,” Dawson’s attorney stated.

On October 15, 2018, the panel of Ninth Circuit judges expressed doubts about Dawson’s arguments. U.S. Circuit Judge Andrew Kleinfeld said it appeared to him that Dawson was not an employee of the NCAA or the Pac-12 Conference, but instead an employee of University of Southern California. Kleinfeld said, “[a] student with one of these very ample football scholarships might arguably be an employee of USC, but even if he were, I don’t understand why he’d be an employee of the NCAA. [The NCAA] doesn’t pick them, it doesn’t bring them into the school, it doesn’t make the decision to award them a scholarship, it doesn’t tell them what to do. I don’t get the tie-in.”

According to Dawson’s attorney, “[i]t is beyond dispute that the NCAA sets the pay rules. It does so in the negative – ‘you cannot pay’ [above the amount the NCAA determines]. But it is in fact setting the pay rules. And when we know that in a commercial transaction involving the exchange of labor for in-kind consideration, the power of the purse string is the ultimate power over the work environment.” However, Judge Kleinfeld was not convinced, “[i]t’s a limit; you don’t have to give the kids scholarships at that level. It’s just if you want to be as competitive in football as the other top football schools, you will. It’s an economic matter.”

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