NCAA Sacks Former USC Linebacker’s Lawsuit Seeking Pay

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By Jon Steingart

Division I college football players aren’t entitled to pay for their efforts on behalf of their schools because they aren’t employees, a federal judge in California ruled ( Dawson v. Nat’l Collegiate Athletic Ass’n , N.D. Cal., No. 3:16-cv-05487, 4/25/17 ).

The April 25 ruling is the latest defeat for student-athletes who have tried unsuccessfully to obtain benefits to which they would be entitled if they were considered employees, such as wages and the right to join a union.

“It seems like we’re trending in a direction where these issues aren’t going to go away, but when these changes actually occur is just pure speculation at this point,” Justin Sievert, a partner at Sievert Werly LLC in Nashville who advises college athletics departments on legal compliance, told Bloomberg BNA April 26. “Classifying somebody as an employee changes the whole dynamic of that relationship and it will cause a whole lot of additional expenses for that institution, and nobody wants to take that on,” said Sievert, who also teaches sports, business and labor and employment law at Davenport University.

Judge Richard Seeborg of the U.S. District Court for the Northern District of California dismissed the case Lamar Dawson, a former linebacker for the University of Southern California, brought against the National Collegiate Athletic Association and the Pac-12 Conference. The case was brought as a proposed class action on behalf of Division I Football Bowl Subdivision players at all NCAA member schools.

Seeborg relied heavily on a ruling in a similar case decided by the U.S. Court of Appeals for the Seventh Circuit in December. It dismissed a lawsuit two former members of the University of Pennsylvania women’s track and field team filed against the NCAA. They, like Dawson, contended they were employees entitled to pay under the Fair Labor Standards Act.

The Seventh Circuit determined NCAA-regulated sports are a type of extracurricular activity the Department of Labor considers not to be compensable work within the meaning of the FLSA. The court also concluded that “the long tradition of amateurism in college sports” means the Penn athletes shouldn’t have expected to be paid.

That tradition was significant to Paul DeCamp, a lawyer who represented several other universities in the Seventh Circuit case. “The fact that a school may derive more revenue now than it did 100 years ago in no way changes the relationship between the student and the school,” said DeCamp, a principal in the Washington, D.C., region office of Jackson Lewis P.C. “The NCAA and the emergence of interscholastic athletics at the college level occurred long before the FLSA was even on the books,” DeCamp told Bloomberg BNA April 26.

Does School Revenue Matter?

At the time of the Seventh Circuit’s ruling, Mark Rifkin, an attorney for Dawson, told Bloomberg BNA he was encouraged by a concurring opinion that questioned whether the reasoning should apply to students who participate in revenue-generating sports such as Division I football. “Women’s track and field is very different relationship than men’s football at USC,” Rifkin said in December about the value different sports teams bring to schools.

“They perform work in exchange for in-kind consideration in the form of exposure and the opportunity to prepare for professional careers,” Rifkin told Bloomberg BNA after the new decision. “That, coupled with the degree of control the NCAA exercises over the terms of employment and the ultimate control over the purse strings—that schools can’t pay them—we think that makes the decision easy,” he said. The degree of control someone exerts over a person who claims there’s an employment relationship is an important factor for determining whether there actually is one.

The NCAA welcomed the ruling. “As we have said in this case and others before it, there is no legal support for the idea that college athletics participation makes a student a university employee,” Donald Remy, chief legal officer for the athletic association, said in a statement provided to Bloomberg BNA April 25. “Playing college sports allows students to get a quality education and build skills to prepare them for success after college. It is unfortunate we must continue to expend resources on cases that copy previously dismissed lawsuits.”

Dawson’s claim is unlikely to end with Seeborg’s decision. “We believe that an appeal is warranted,” Rifkin said. “We knew going that this was heading to the Ninth Circuit no matter what the result was,” he said, referring to the U.S. Court of Appeals for the Ninth Circuit, which establishes precedent for federal courts California, eight other western states and two U.S. territories.

Rifkin and Jeffrey Smith with Wolf Haldenstein Adler Freeman & Herz LLP in New York City; John Kelson of the Law Offices of John M. Kelson in Oakland, Calif.; and Jerry Cimmet of San Mateo, Calif., represented Dawson.

Kenneth Sulzer, Steven Katz and Sarah Kroll-Rosenbaum with Constangy, Brooks, Smith & Prophete LLP in Los Angeles represented the NCAA. Jeffrey A. Berman, Diana Tabacopoulos and Kiran Seldon with Seyfarth Shaw LLP in Los Angeles represented the Pac-12 Conference.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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