The Sports Law Insider previously reported on a putative class’ wage suit against the NCAA and several universities. The suit by former Villanova football player Lawrence “Poppy” Livers was brought in September 2017. Livers asserted that the NCAA, Villanova and other universities were violating the minimum wage provision of the Fair Labor Standards Act (FLSA). Livers likened college athletes to paid student employees and claimed they should be compensated as such. However, Livers needed to show that the NCAA and the universities “willfully” violated the minimum wage provision of the FLSA because the claim would otherwise be barred for being older than the two-year period. The claim was ultimately dismissed by U.S. as the court found that the two year period had tolled as Livers’ playing career ended more than two years before the suit. The court also found that Livers did not have standing to sue colleges he did not play for or attend and that he did adequately assert that a business relationship existed with Villanova or the NCAA.
Part of the claim was dismissed with prejudice and part without, leaving Livers with an opportunity to amend his complaint against the NCAA and Villanova.
On Thursday June 14, the NCAA and Villanova once again attempted to dismiss the remaining amended claims brought by Livers. The association and university still do not believe that Livers’ amended complaint fixed any of the problems with the original suit. The NCAA specifically puts forth that Livers has yet to allege a willful violation and thus, the suit was still filed too late. The motion to dismiss states, “Livers failed to cure the many legal defects in his claim. It is now time for this court to dismiss the remaining defendants with prejudice.”
The NCAA argued that Livers made the same conclusory allegations in his new complaint and that Livers’ evidence was not sufficient to support his claims. The motion goes on to dispute if Livers’ complaint was sufficient to establish that student athletes should be treated as employees and if athletic scholarships can create the necessary economic relationship needed for the FLSA claim.
Nevertheless, Livers and his attorney Paul McDonald are confident that the court will grant their motion for reconsideration they filed in May 2018. This motion attempted to reinstate the original complaint, which if granted, makes the NCAA’s motion to dismiss the amended complaint moot, according to McDonald. Additionally, the motion for reconsideration argues that Liver does not need to prove “willfulness” at the pleading stage and that the original complaint established economic dependence. The fortunes of Livers and the proposed class rest on the court’s decision on their motion for reconsideration.