Take Two: NCAA Moves to Dismiss Student Athlete’s Wage Suit

On October 8, 2018, the NCAA moved to dismiss a proposed class action lawsuit led by Lawrence “Poppy” Livers, a former Villanova University football player. As we have previously reported, Livers sued to the NCAA claiming 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.

On July 25, 2018, U.S. District Judge Michael M. Baylson denied the NCAA’s first attempt to dismiss the lawsuit. Judge Baylson denied the NCAA’s motion because Livers’ amended lawsuit alleged, “NCAA member schools understood that scholarship athletes are directly comparable to students employed in work study programs, individuals who are classified as employees under the FLSA.” Further, the complaint included “factual allegations comparing and contrasting scholarship athletes and students involved in work study programs in order to demonstrate that scholarship athletes’ performance outside the classroom is similar … to that of students involved in work study, and in fact that it is more arduous and time consuming.” Lastly, the complaint included “factual allegations contrasting the experience of scholarship athletes and students involved in work study programs to that of students involved in student-run groups, to demonstrate that this latter group is subject to much less discretionary control by college supervisory staff.”

Now the NCAA argues that at the time at the time of Livers’ graduation there had been no federal court rulings on whether student-athletes were covered by FLSA. According to the NCAA, “[e]ven if this court were inclined to make new law on this issue, it is impossible for [the NCAA] to have willfully violated a new rule before it was ever announced.” In their motion to dismiss, the NCAA also argued that, prior to 2015, courts have consistently ruled that student-athletes were not employees within the U.S. Department of Labor’s definition of “employee.” According to the NCAA, a reasonable interpretation of the U.S. Department of Labor’s understanding of “employee” would, “likely require the court to rule that [the NCAA] acted reasonably in making the judgment that they need not compensate student athletes pursuant to the FLSA, and therefore that [the NCAA] did not willfully violate the FLSA.”

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