Wage Equity for Student Athletes

How to level the field of pay

First, Through Cooperation

SAME legal counsel approached the NCAA in a good faith, cooperative effort to effect rule changes and insure that NCAA Division I student athletes are no longer deprived of lawfully-earned wages and equal treatment under the Fair Labor Standards Act (FLSA). 

But, If Cooperation Is Rejected or Futile, through Litigation

The NCAA rejected cooperation, and litigation ensued.

it's a matter of respect, not excuses

The NCAA insists student athletes should be exempted from the FLSA minimum-wage as prisoners are under the 13th amendment

In a prior case, Berger v. NCAA, the NCAA and Division I member schools argued that student athletes should be denied their "day in court" based upon the dismissal of a prisoner’s FLSA complaint seeking minimum-wages for work performed as part of his prison sentence.

Seriously.

Comparing student athlete performance to unpaid involuntary servitude of prisoners is dubious at best.  See, e.g., Sally Jenkins, “Are college athletes the same as prisoners?  These judges seem to think so,” The Washington Post, Jan. 5, 2017. 

The NCAA relied on Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992), a case evaluating a prisoner's FLSA claim for employee status and pay in light of the 13th Amendment, reading, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States ...."  

In Vanskike, the Circuit Court concluded:

[T]he relationship between the DOC [Department of Corrections] and a prisoner is far different from a traditional employer-employee relationship, because … inmate labor belongs to the institution. The 13th Amendment excludes convicted criminals from the prohibition of involuntary servitude, so prisoners may be required to work. Further, there is no Constitutional right to compensation for such work ....

[L]iteral application of the Bonnette factors [i.e., a multi-factor employee test] in the present context …. fail to capture the true nature of the relationship for essentially they presuppose a free labor situation. Put simply, the DOC’s “control” over Vanskike [stems] from incarceration itself.  The control that the DOC exercises over a prisoner is nearly total, and control over his work is merely incidental to that general control.  Indeed, the 13th Amendment’s specific exclusion of prisoner labor supports the idea that a prisoner performing required work for the prison is actually engaged in involuntary servitude, not employment ….

Prisoners are essentially taken out of the national economy upon incarceration. When they are assigned work within the prison for purposes of training and rehabilitation, they have not contracted with the government to become its employees. Rather, they are working as part of their sentences of incarceration.  Because Vanskike's allegations reveal that he worked in the prison and for the DOC pursuant to penological work assignments, the economic reality is that he was not an "employee" under the FLSA.

Id. at 809-10.

In Livers v. NCAA, the NCAA and certain Division I member schools doubled-down on relying upon Vanskike v. Peters. See, e.g., Shaun King, “The NCAA Says Student-Athletes Shouldn’t Be Paid Because the 13th Amendment Allows Unpaid Prison Labor,” TheIntercept.com, Feb. 22, 2018; and Elie Mystal, “NCAA Doubles Down on Comparing Student Athletes to Prisoners,” AboveTheLaw.com, Feb. 23, 2018.

The express language of the 13th Amendment exempts prisoners from employee status and pay under the FLSA.

There is no comparable exemption for NCAA-defined amateurism enumerated or defined in the FLSA; neither “amateur” nor “amateurism” appears in the statutory language of the FLSA.

In any event, student employment by colleges is not considered "professional," and it is not subject to FICA (Social Security and Medicare) taxes.  See Internal Revenue Code, 26 U.S.C. § 3121(b)(10) and 26 C.F.R. 31.3121(b)(10)-2.

The NCAA insists NCAA Sports should be grouped with student-run groups exempted from the FLSA, like glee club and ultimate frisbee

As mentioned before in Wage Disparities Among Students, courts recognize that if an employer has the right to control and direct the work of an individual - as to the result to be achieved and the details by which that result is achieved - an employer-employee relationship is likely to exist.. 

On college campuses, full-time college staff supervise - i.e., "control and direct the work of" - students in work study, and, even more so, student athletes.

For example, both hours of participation in work study and in NCAA Division I sports are recorded on timesheets maintained by supervising college staff. See U.S. Department of Education, 2016-2017 Federal Student Aid Handbook, 6-48, and NCAA Division I Bylaw 17.1.7.3.4.

But student-run groups are different.  

Colleges exercise insufficient control over student-run groups - e.g., dramatics, publications, glee clubs, bands, choirs, debate, radio stations, intramurals, and interscholastic club team sports - to create an employer-employee relationship because, by definition, students are solely or principally responsible for student-run group leadership, organization and decision-making.  

At most, student-run groups are advised by faculty off-duty or part-time, but not supervised full-time. 

Student responsibility for drafting a constitution and bylaws, conducting meetings, establishing dues and/or fundraising, planning activities, and publicizing events make student-run groups "educational experiences" distinctly different from work study or NCAA Division I sports supervised by college staff full-time.

Nonetheless, in Berger v. NCAA, the NCAA and Division I member schools argued that NCAA sports are the same as student-run groups.  

But the Content and Statements on NCAA Division I Member School Websites contradict their legal posturing and recognize the clear distinctions between student-run groups and NCAA Division I sports.  For example: 

The New York Times has similarly distinguished student-run, interscholastic club team sports from NCAA and NAIA sports.  See Bill Pennington, “Rise of College Club Teams Creates a Whole New Level of Success,” N.Y. Times, Dec. 2, 2008.