NCAA Attorneys Should Be Sanctioned, Former Student Athlete Says

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By Porter Wells

Former Villanova University football player Poppy Livers is hoping a federal court will allow his legal play in an ongoing struggle in which student athletes demand to be treated as employees entitled to pay. A motion filed Feb. 20 accuses the National Collegiate Athletic Association of misleading the court in order to escape paying student athletes.

Federal courts have already dismissed suits brought by student athletes demanding wages in the Seventh Circuit and in the Northern District of California. In both cases, the courts decided that student athletes aren’t employees within the meaning of the Fair Labor Standards Act and therefore aren’t entitled to minimum wage.

Now duking it out in the U.S. District Court for the Eastern District of Pennsylvania, the NCAA is relying on those two cases as it defends against Livers’ lawsuit—a choice Livers says is improper and deserving of sanctions.

Livers’ motion for sanctions says that the courts in the previous cases drew incorrect parallels between student athletes and prisoners. He says the NCAA therefore shouldn’t be allowed to use them as support in the current case.

Unpaid prison labor has been carved out as an exemption from the FLSA’s “employee” status because the Thirteenth Amendment explicitly allows involuntary, unpaid labor as punishment for a crime. That exemption shouldn’t have been expanded to student athletes in any jurisdiction because student athletes haven’t committed a crime, Livers says.

The thrust of Livers’ motion is his argument that defense counsel already knows the expansion of the prisoner exemption is incorrect, given defense counsel in the present case is the same as in the two previous cases. Law firm Constangy, Brooks, Smith and Prophete in Los Angeles has been listed as at least one of the NCAA’s counsel in all three student-athlete cases.

“Defense counsel should not be permitted to insulate themselves from sanctions by reference to any case decided in error based upon their own, prior misrepresentations,” Paul McDonald of P L McDonald Law in Philadelphia told Bloomberg Law. McDonald represents Livers in the putative class action against the NCAA and other defendant colleges and universities.

Counsel for the NCAA didn’t immediately respond to a request for comment. The court hasn’t yet ruled on Livers’ motion for sanctions or on the NCAA’s motion to dismiss Livers’ claims.

The case Livers v. Nat’l Collegiate Athletic Ass’n, E.D. Pa., No. 2:17-cv-04271-MMB, motion for sanctions 2/20/18.

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