Former USC Football Player Urges California Court Not to Dismiss FLSA Class Action Suit

On Monday, February 27, 2017, former USC football player, Lamar Dawson, urged the Northern District of California court not to dismiss his proposed class action lawsuit, in which he seeks wages and overtime pay for Division I Football Bowl Subdivision (FBS) players.

As background, Dawson filed suit against the NCAA and Pac-12, alleging that the organizations violated the Fair Labor Standards Act (FLSA) and California State labor law by underpaying athletes, not paying athletes minimum wages for all hours worked, not paying timely compensation, not offering itemized wage statements, and having athletes work more than eight hours a day and 40 hours per week without paying them over time. Essentially, Dawson argued that the league owes wages to FBS athletes, just as they would to their other employees.

In response to Dawson’s suit, Pac-12 stated that it would be defending itself vigorously against this lawsuit, as student-athletes are not employees. The NCAA responded similarly and argued that “these college students, like their non-athlete colleagues, are very focused on their academic endeavors. Moreover, they have a passion for their sport and a commitment to their teammates that can’t be equated to punching a time clock.”

Dawson’s attorney, Mark Rifkin, stated that “[t]he NCAA and the leagues are big business that derive enormous financial benefits from the labor of the athletes. . . the undeniable economic reality of that relationship requires the athletes to be recognized as employees.” Thus, according to Dawson, athletes must be “paid mandatory minimum wages and overtime for their labor.

To distinguish his case from a recently dismissed suit by University of Pennsylvania track athletes, Dawson argued that the underlying economic factors in both suits could not be more different. Specifically, Dawson maintained that the “economic impact of the multibillion-dollar FBS programs is nothing like the non-revenue-generating track and field activities.” Dawson continued, “[d]efendants structure and conduct their billion-dollar FBS operations like a major commercial business enterprise, and not one dollar of that enormous revenue would exist were it not for the on-the-field-efforts of the football players themselves.”

While other athletes have recently failed in court to receive compensation above and beyond their scholarship amount, Dawson alleged that his case is different from those of the other athletes. First, Dawson argued that the Seventh Circuit’s finding that athletes are not employees under the FLSA was not a blanket ruling over all student-athletes, but rather, narrowly tailored to those athletes whose performance does not make their school money. Further, Dawson pointed to the Ninth Circuit’s ruling in O’Bannon v. NCAA, where the court held that “athletes’ exchange of their play for compensation is a quintessentially commercial transaction.” Even though the O’Bannon court did not state whether student-athletes are employees or not, Dawson alleged that the Ninth Circuit commercial transaction holding supports a finding that student-players are employees.

Since Dawson satisfied the Ninth Circuit’s traditional labor law analysis, and the Seventh Circuit’s ‘nature of the relationship test,’ i.e., that Dawson and all Division I FBS players are employed by the NCAA and its member conferences in an extremely profitable business enterprise, “the players are entitled to statutory minimum wages, and their claims should not be dismissed.”

If Dawson’s case is dismissed, student-athletes will not be entitled to adequate compensation pursuant to the FLSA, even though these players put in countless hours of practice and play time, and earn the NCAA and the Leagues enormous financial benefits from their labor. However, allowing Dawson’s case to move forward could greatly limit college athletics, as colleges that cannot afford to shell out large sums of money will not be able to ring in the top players.

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