College Sport

What you need to know about the latest NCAA legal battle

The NCAA returns to the federal courtroom on Wednesday to continue tackling one of the many ongoing problems with its amateurish business model.

If this slow transition to something more pro-sports is starting to feel like the equivalent of an 18-minute game and a 14-minute game, a three-way, planned attack, you’re not alone. The legal battles that have occupied the last few college football offseasons are tedious, repetitive, and full of a dizzying menu of overlapping threats. It’s still unclear which threat of the current options has the best chance of breaking through, but the NCAA is entering this offseason increasingly like a scattered defense and tagging along, hoping for some unexpected help to stop it.

Wednesday’s hearing before the U.S. Court of Appeals for the 3rd Circuit in Philadelphia is the next step in Johnson v. NCAA, in which several former college athletes allege they should have been paid hourly wages like other students working on their campuses. . The NCAA argues that its business is unique and that the usual rules that determine whether someone fits the definition of an employee don’t make sense for college athletes. Appellate judges will ultimately decide whether standard employee status tests should be applied to college athletes and their schools.

“This particular case goes under the radar compared to some others that we hear about a lot more, but it’s important,” said Sarah Wake, who, as a lawyer at McGuireWoods, advises universities on sports compliance.

Wake said the Johnson case is further in the litigation than many of the other threats facing the NCAA. While it’s hard to predict which one is most likely to deal a major blow to amateurism in collegiate sports, each new threat increases the chances that some contender will find a sympathetic ear that can bring about significant change.

“One of these things will catch on,” Wake said. “It’s only a matter of time before something goes in favor of student athletes.”

By 2024, the college football playoffs will triple in size, and the two most influential football conferences in the country will officially host four of the sport’s biggest brands (Texas and Oklahoma will play their first season in the SEC this year, while USC and UCLA should be in “Big Ten”). These changes were brought about and accelerated by the exchange of hundreds of millions of dollars.

Where will college athletes fit in this multi-billion dollar industry by then? Here’s what you need to know about how the Johnson case might provide an answer and where it ranks among the looming legal forces that are reshaping college sports:

What is the Johnson case?

This case, filed by former Villanova football player Trey Johnson, alleges that college athletes meet the definition of an employee and are denied rights protected by the Fair Labor Standards Act (FLSA). These rights include setting minimum hourly wages and overtime pay.

Lawyer for the plaintiff, Paul McDonald, said his goal is to give athletes the same rights as fellow students who take tickets or sell concessions to their games when they work at the university.

“They’ve been saying all these years that you can’t be a student and a staff member at the same time, but we’ve always had kids working on campus, working in canteens and libraries and offices, working on games themselves,” McDonald said. “They are trying to put athletes at a disadvantage compared to other kids on campus. It seems fundamentally unfair.”

The NCAA and its lawyers have argued in court documents that college sports are not work-for-compensation. They say it’s part of an educational experience for athletes on campus instead. Some participants argued that having athletes in their school was beyond the means of most college sports departments. NCAA members say they are ready to “modernize” their rules but are taking a hard line by calling their athletes school workers.

What’s happening this week?

This week’s hearing is part of an interlocutory appeal, an appeal filed on a specific issue in the middle of a case before a verdict is reached. The NCAA asked US District Judge John Padova to dismiss the lawsuit on the grounds that other district courts had already determined that college sports were not considered work. Padua denied that request, and the NCAA is now appealing his decision to keep the case from moving forward.

The appeals court will not rule on Wednesday (it will likely take weeks or months), but the questions asked may provide some insight into how the judges are handling the NCAA’s request. For example, late last month, the judges asked lawyers on both sides to prepare for a discussion of how the transfer of athletes to employees could affect schools’ Title IX obligations, indicating the court is considering the broader implications of its decision.

If other courts have already ruled in favor of the NCAA, what has changed?

The courts for the 9th and 7th circuits have ruled that college athletes are not FLSA-protected employees. Those cases (Dawson vs. NCAA And Berger vs. NCAA) concluded in 2019 and 2016, respectively. The thought of treating college athletes as employees is less of an annoyance now than it was even a few years ago, thanks in large part to changes in the rules regarding names, images, and likeness. Other courts have also shown less respect in the last few years for the NCAA’s argument that it’s not like other industries — most notably the U.S. Supreme Court when it ruled unanimously that the organization was violating antitrust law in June 2021. Alston vs. NCAA happening.

“The general mood has changed in many minds,” said sports attorney Mit Winter. “In the past, it was difficult to even think of college athletes as employees.”

The Supreme Court decision in the Alston case—especially the concurring opinion of Judge Brett Kavanaugh—opened the door for the NCAA to be viewed in the same light as other entertainment industry groups, rather than as an academy-focused institution that addresses all the legal issues it faces. organization. have since faced a more serious potential threat.

What other legal battles are being fought by the NCAA?

The other two groups are vying for worker status for college athletes using another legal lever, the National Labor Relations Board. The applicants’ success in any of these cases could potentially lead to college athletes being able to form unions and bargain collectively. One of these efforts took a significant step forward in December, but is likely still at least a year away from completion.

Antitrust lawsuits also remain a big threat to the NCAA. While Alston’s decision confirmed that it was illegal for the NCAA to limit the academic benefits a school can provide to its athletes, others are already seeking to expand that list of benefits. Another antitrust lawsuit (House v. NCAA) moving through the courts could remove the NCAA’s authority to enforce any restrictions on college athlete endorsements and put the association on the hook to pay potentially damaging financial compensation to former athletes who have been thwarted. from making money on endorsements while in college. This case is not due to go to court until September 2024.

Outside the courtroom, NCAA leaders are growing wary of state legislators creating laws that either grant employee rights to college athletes or force schools to share a large portion of their revenues with teams that make a profit. After all, it was state legislators who forced the NIL rule to be changed after years of unsuccessful legal efforts. They may prove to be a similar catalyst for the next frontier of professional college sports.

What is the NCAA argument in the Johnson case?

NCAA lawyers provided the court with other examples of industries where routine employee status checks do not reflect the “economic reality” of the relationship between the parties. They have successfully argued that the relationship between athlete and school deserves special attention in the Berger and Dawson cases mentioned above.

Macdonald says the root source of legal precedent for their arguments is a case called Vanskike s. Peters. The judge in the case ruled that prisoners who work while they are incarcerated are not considered prison employees. The judge justified the decision by citing the 13th Amendment, which states that slavery is illegal except as a punishment for a crime.

Are they really comparing college athletes to prisoners?

No, not at all. NCAA lawyers are using the Vanskik case to argue that the judiciary recognizes that there are some circumstances in which the regular employee status test doesn’t work. While they say that both college sports and incarceration are examples of special circumstances, they do not claim that the circumstances are the same.

Despite the noteworthy nuance in its line of reasoning, the NCAA is still building its legal case on the 13th Amendment loophole to slavery. McDonald, the plaintiff’s attorney, said the implications were racially unresponsive at best, given the high percentage of black athletes in the NCAA’s top-grossing sports.

The NCAA and its lawyers were certainly aware of the comparisons they could cause by mentioning college sports and an employment rights case in the same legal documents. Legal analysts say the use of the Vanskik case at least illustrates the limited ability the NCAA has to do its best.

“There is a nuance to this argument, but it just looks bad. He’s deaf,” Winter said. “People who work for the NCAA are smart people. They had to know and take into account the PR aspect. They probably just thought it was…


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