Former College Athlete’s Minimum-Wage Suit Goes Forward

By Joanne Deschenaux, J.D. August 22, 2018
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Former College Athlete’s Minimum-Wage Suit Goes Forward

​A former college athlete can continue with his lawsuit against Villanova University and the National Collegiate Athletic Association (NCAA) for their failure to pay him a salary while he played on the university's football team, a federal district court in Pennsylvania ruled. The plaintiff, who received an athletic scholarship, could proceed with his minimum-wage claim under the federal Fair Labor Standards Act (FLSA), the court said. Two similar FLSA claims brought by student-athletes were previously dismissed by other federal courts, which ruled that the athletes were not employees of the colleges or the NCAA and so were not entitled to any payment for their participation in college sports.

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The FLSA defines "employee" as "any individual employed by an employer." Cases decided under the FLSA have established that "courts must look to the economic realities of the relationship in determining employee status under the FLSA."

The defendants argued that the plaintiff had not shown that the economic reality of his relationship with either Villanova or the NCAA was one of employee to employer. The complaint, they claimed, merely alleged that the plaintiff voluntarily participated in a sport with a long tradition of amateurism while attending school to receive an education.

There is no single test for evaluating the economic reality standard, the defendants said. None of the various tests that courts have used in differing circumstances could fairly be applied here because they all fail to capture the tradition of amateurism that defines student athletics.

The defendants argued that, in light of this tradition, the court should conclude that student-athletes are not employees under the FLSA.

The plaintiff argued that his position as a scholarship athlete was similar to that of a student intern and that the "primary beneficiary test" used to determine whether interns should be paid should apply. This test allows courts to examine the economic reality of the student/employer relationship to determine which party is the primary beneficiary of the relationship. If the employer's benefits greatly outweigh those of the student, the student should be paid.

The plaintiff claimed that under this test, there was enough evidence that student-athletes receiving scholarships were employees under the FLSA, and that the lawsuit should be allowed to continue.

The court noted that there is no amateurism exception in the FLSA, and the defendants' "self-serving assertion" that the tradition of amateurism within the NCAA precludes a finding that the plaintiff is covered by the FLSA was unpersuasive.

The court ruled that the plaintiff was entitled to continue with the lawsuit, saying that it could not, at this early stage in the proceedings, say that the plaintiff was not an employee while he received an athletic scholarship to play football at Villanova.

Livers v. National Collegiate Athletic Association, E.D. Pa., No. 17-4271 (July 25, 2018).

Professional Pointer: This motion to dismiss was brought at a very early point in this lawsuit, with defendants arguing that there was no evidence the plaintiff could produce that would show that he was an employee. By denying the motion to dismiss, the court is only allowing the parties to proceed to the discovery phase of the trial, where each side will try to gather information to support its position as to the employment status of scholarship athletes.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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