A former University of Southern California linebacker, Lamar Dawson, again tried to convince the Ninth Circuit to revive his class action suit against the National Collegiate Athletic Association (NCAA) and the Pacific-12 Conference (Pac-12). As we have previously covered, Dawson began the class-action lawsuit in September 2016 alleging the NCAA and Pac-12 violated California law and the Fair Labor Standards Act (FLSA) by not paying college football players a minimum wage or overtime. “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. The NCAA and the Pac-12 have consistently argued that not paying college football players is precisely what makes them amateurs.
In April 2017, Judge Richard Seeborg of the U.S. District Court for the Northern District of California, granted the motion to dismiss the suit, holding that Dawson’s suit was based on an unsustainable legal theory. In May 2017, Dawson appealed arguing Judge Seeborg erred in deciding student athletes were not employees. On January 10, 2018, Dawson submitted a reply brief which stated that he agrees that the proper analysis of an employment relationship under the FLSA is one of “economic reality.” Yet, Dawson argues that the NCAA and PAC-12 accept fierce competitive labor from [college] football players in exchange for compensation in the form of tuition. From that labor, the NCAA and PAC-12 generate mega-million dollar revenues that rival many Fortune 500 companies, but they failed to pay athletes minimum wage, to pay overtime, and to make timely compensation to athletes.
Dawson argues that college football players are employees covered under the FLSA. Even though the players are considered amateurs, according to Dawson, there is “no express or implied exception holding … that amateurism, somehow spares [NCAA and Pac-12] very profitable and commercial football program[s] from the FLSA simply because they are conducted by educational organizations. In any event, [the] enormously profitable commercial activities are hardly amateur.” Dawson also argues that an employment relationship “unquestionably exists because the athletes expect to receive similar in-kind benefits such as food, lodging, grants-in-aid and scholarships, which amount to wages in another form.” Dawson cites Ninth Circuit case law which says, “the bargained-for exchange of ‘labor for in-kind compensation’ is ‘quintessentially a commercial transaction,’ not an educational one.” Further, Dawson argues that the NCAA and the Pac-12 had an “unquestionably” right to control [college] football players, which he argues is another indication that an employment relationship exists between the NCAA, Pac-12, and college football players.
If the Ninth Circuit refuses to revive Dawson’s class action suit, then Dawson’s only other option is to appeal to the U.S. Supreme Court. However, the Supreme Court, unlike the court of appeals, is not required to take all cases, the Court must “grant cert,” which is usually granted less than 100 times per year.