A case that could signal the continued erosion of the amateur status of university student-athletes will continue as action in Ralph “Trey” Johnson et al. against the NCAA survived the defendants’ motion to dismiss the complaint.
United States District Court Judge John Padova allowed the claims of the six student-athlete plaintiffs against Villanova, Fordham, Sacred Heart, Cornell and Lafayette, as he found the schools had failed to demonstrate at this stage of the litigation that the student-athletes were not employees. The student-athletes presented their claims as part of a class action or class action project. They seek to be classified as employees under the Fair Labor Standards Act (FLSA) and state labor laws and are entitled to minimum wage.
Judge Padova’s 30-page order discussed the familiar arguments made by plaintiffs’ attorney Paul McDonald in Berger c. NCAA, a 2016 case decided by the United States Court of Appeals for the Seventh Circuit. In Shepherd, the Seventh Circuit rejected the “employees” argument, concluding that the amateur status of college athletes precluded their classification as employees of their individual schools. Judge Padova rejected the schools’ argument that student-athletes are registered as students and do not perform employee duties.
“Judge Padua distinguished Shepherd and referred to the recent United States Supreme Court ruling in NCAA v. Alston, “
who rejected the argument that the remuneration of student-athletes for educational services should be limited. He further rejected the position of the NCAA and individual schools “that the plaintiffs are not employees entitled to minimum wage under the FLSA, as there is a long tradition of amateurism in NCAA interschool athletics. which defines the economic reality of the relationship between the Complainants and the schools.
In his analysis, Judge Padova applied the Glatt test. This test is used to assess when an intern should be considered an employee based on the benefits received and an analysis of seven factors.
The seven factors are:
The interns expected payment for the internship program;
The training in the practicum was consistent with what they would have learned in an educational environment;
The internship was for academic credit or was part of the intern’s formal education;
The internship period was in accordance with an academic calendar;
The duration of the internship was for a precious period;
The interns have displaced employees paid for the tasks they perform; and
The interns were waiting for a paid job offer after the internship.
Judge Padova said that by virtue of some of the factors, such as waiting for compensation or a job, student-athletes do not appear to be employees. He considered two other factors to be neutral, namely whether an intern receives training similar to that in an educational environment and the extent to which the internship is limited to the period during which it provides beneficial learning.
“However, Judge Padova found other Glatt factors suggest that athletes are employees.
These factors included the extent to which: an internship relates to an intern’s training, an internship takes into account an intern’s academic commitments and the intern completes instead of shifting employee work.
“Balancing all these factors,” Judge Padova concluded, “the complaint plausibly alleges that the complainants are employees of the [schools] under Glatt’s test.
While the dismissal of the motion to dismiss will allow the action to continue, the analysis on the merits has not yet started. The standard for opposing a motion to dismiss is much lower than the burden of proof faced by claimants in a potential trial.
Jackson Lewis PC © 2021Revue nationale de droit, volume XI, number 244