NCAA Writes Another Letter to Court; Urges Refusal of Employee Status to Division I Players

On April 17, 2018, counsel for the NCAA submitted another letter to the Ninth Circuit, contending that a recent ruling should bear weight on the court’s ultimate decision whether to consider Division I athletes as employees. The NCAA has been entangled in a suit with former football player, Lamar Dawson, who alleges that the NCAA violated California law and the Fair Labor Standards Act (FLSA) in its refusal to pay student athletes minimum wage or overtime. As we have recently reported, the NCAA first sent the Ninth Circuit a letter earlier in April, informing the court that a case it had cited in its opening brief had been overturned.

In its April 17 letter, the NCAA brought attention to a Sixth Circuit decision, Acosta v. Cathedral Buffet, stating that “working in contemplation of compensation is a necessary condition of qualifying as an ‘employee’ under [ ] FLSA.” There, the court sought to determine whether those serving as unpaid volunteers would nevertheless be deemed employees for FLSA purposes where they were performing the same duties as paid employees within the organization. The letter continues, “[t]he Sixth Circuit held that the volunteers were not ‘FLSA employees’ because they ‘did not work in expectation of compensation.’”

In closing, the NCAA cited the Sixth Circuit, providing that the “expectation of compensation is a threshold inquiry that must be satisfied before we assess the economic realities of the working relationship.” The argument is presumably that the Ninth Circuit should similarly refuse to categorize Division I players as employees, on the basis that they do not expect to be compensated for their efforts.

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