Wage Equity for Student Athletes

How to level the field of pay

First, Through Cooperation

In Summer 2014, 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 et al. 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., employee criteria] in the present context …. fail to capture the true nature of the relationship for essentially they presuppose a free labor situation …. [T]he 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 .... 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.

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

The 13th Amendment’s exemption for unpaid prison labor is controversial.  It has been criticized in the Oscar-nominated documentary "13th," see, e.g., Manohla Dargis, “Review: ‘13th,’ The Journey from Shackles to Prison Bars,” The New York Times, Sept. 29, 2016 and Bethonie Butler, “Ava DuVernay’s Netflix film ‘13th’ reveals how mass incarceration is an extension of slavery,” The Washington Post, Oct. 6, 2016, and by both “conservative” and “liberal” commentators. See, e.g., Randall John Meyer (of Cato Institute), “Slavery Is Still Legal in the United States,” Newsweek, Aug. 25, 2015 and Whitney Benns, “American Slavery, Reinvented,” The Atlantic, Sept. 21, 2015

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, "[i]f an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist."  Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 703 (7th Cir. 2015). 

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.  

Dramatics, publications, glee clubs, bands, choirs, debate, radio stations, intramurals, and interscholastic club team sports.

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: 

George Washington University

Club Sports are registered student organizations established by students .... 

Students in each club are responsible for the internal organization and conduct of their club activities .... The management and organization of a Club Sport is an educational experience providing many challenges for students such as; writing their own constitution and by-laws, conducting club meetings, establishing dues to offset club expenditures, planning fund raising projects, coordinating practices, competition and special events, participating in community service projects, publicizing club events ....

Club Sports should not be mistaken for an intercollegiate sport administered by the Department of Athletics & Recreation [i.e., a NCAA sport].  In a club, the members assume the organizational and management responsibilities.

*****
A number of GW's club teams compete regionally and nationally.

Lafayette College

Varsity sports [i.e., NCAA sports] are sponsored by the College and funded through the operating budget, NCAA funding, revenue generated through various events, and gifts from generous donors. Sports clubs are not sponsored by the college, but by Student Government in response to student interest and initiative. The primary sources of funding for sports clubs are student activity fees (distributed at the discretion of Student Government), sport club member dues, fundraising activities, and gifts from generous donors.

 

Unlike varsity sports, sport clubs are student-run organizations who decide for themselves their level of competitiveness, whether or not they will hire a coach or instructor, how often they will practice, and if they will continue to exist at all ....

[Sport clubs] participate in competitions with clubs from other institutions (in many cases as a member of a specific league), and others enter a variety of weekend tournaments.

University of Richmond

Participation in sport clubs is a learning experience for the members through their involvement in the administration, organization, budgeting, scheduling, fund-raising, and public relations ....

A sport club is a student organization .... Clubs compete with other clubs, organizations, colleges, and universities but should not be confused with a varsity sport administered by the Athletic Department [i.e., a NCAA sport].  Varsity teams must follow NCAA rules and regulations, are usually fully funded, have paid coaches and athletic trainers, practices and competitions are mandatory, and today's varsity sports usually require a full year commitment. Sport clubs often compete with other universities but are not affiliated with the NCAA, the majority of their funds are self-generated, coaches are often volunteers, and the organization and administration of the club is determined by the club officers.

Mount St. Mary’s University

[Club Sports] Teams at the Mount are run by a group of student leaders. Their responsibilities include working alongside a coach / advisor, handling finances, scheduling practices / games, completing fundraising / community service activities, and more.  As this list indicates, running a club sports team is a lot like running your own business.

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.


NCAA DIVISION I Litigation Facts

  Livers v. NCAA et al.  Complaint

Livers v. NCAA et al. Complaint

SAME legal counsel filed  Livers v. NCAA, et al. on September 26, 2017.

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Livers v. NCAA, et al. Plaintiff Case Filings

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This litigation differs from other lawsuits filed against the NCAA and also from the College Athlete Players Association petition to unionize Northwestern University football scholarship athletes.

  • This litigation includes women, i.e., it is Title IX compliant.
  • This litigation includes all NCAA sports - not just football and men's basketball - because it recognizes that degree of revenue generation is not a legal criteria for employee status and pay.  

In fact, several persons accepted, and treated, as college employees generate no, or minimal, revenue, including but not limited to: (i) students in work study and college support staff, performing operational activities in campus departments or offices, libraries, dining halls and facilities (as opposed to sales, fundraising and collection activities); and (ii) college staff in “cost centers,” i.e., departments costing or spending money, without bringing money in, such as human resources, facilities and grounds maintenance, public safety, information technology, records management, purchasing, accounting and legal counsel.

  • This litigation is for student athlete pay on par with fellow students in work study, who are paid on a minimum-wage scale.

It does not seek large or semi-pro paydays for a select few in football and men's basketball to the detriment of athletic opportunities for other student athletes or of intercollegiate competition.

  • This litigation does not classify student athletes as full-time employees having collective-bargaining and benefits.

It recognizes that student athletes, like students in work study, are students, first, and properly classified as temporary employees.

  • This litigation does not propose changes to, or the elimination of, the current scholarship/grant-in-aid system.

Because it does not seek to re-categorize scholarships as pay, it would not create any new income tax liabilities, and net out-of-pocket losses, for student athletes and/or their families.

In fact, this litigation does not require significant change to the status quo.

During the academic year, NCAA member schools could fold student athletes into existing work study payroll systems – even utilizing NCAA required recording of countable athletically-related activities (CARA) as weekly timesheets.  See, e.g., NCAA Division I Bylaw 17.1.7.3.4.

During the summer, NCAA member schools already include a select few student athletes in work study payroll systems when employing them as counselors for sports camps and clinics, as permitted by NCAA rules.  See, e.g., NCAA Division I Bylaws 12.4.3 and 13.12.