By: Marie Bussey

November 25, 2014

sackos

Photo Credit: www.facebook.com/HoustonCougarSoccer

Student athletes often are thought to receive special treatment, as evidenced by the fact that many are idolized on campuses.  While recent media reports concerning certain star college football players seem to further such notions, a civil action filed last month in the U.S. District Court for the Southern District of Indiana asserts that college students in work-study programs are afforded “different, and better, treatment”[1] compared to student athletes.  The lawsuit has one goal: pay student athletes minimum wage as work-study participants.

The Parties

Represented by Philadelphia attorney Paul L. McDonald, a former University of Houston women’s soccer player, Samantha Sackos, initiated the class action on behalf of herself and “all NCAA Division I student athletes participating in women’s and men’s sports . . . (the ‘Student Athlete Collective’).”[2]  In her complaint, Ms. Sackos names as defendants the NCAA and every Division I Member School.

The Complaint

In her complaint, Ms. Sackos alleges that student athletes “meet the criteria for recognition as temporary employees . . . under the FLSA” (Fair Labor Standards Act) because, like work-study participants, student athletes (1) “perform non-academic functions for no academic credit,” (2) are required to limit time spent on athletic (“work”) activities to minimize interference with their education, (3) must keep a record of time spent on athletically-related activities, and (4) “confer benefits” on the college.[3]  Since the NCAA bylaws, which “are adopted through a legislative process by NCAA Member Schools[,] . . . prohibit recognition of student athletes as temporary employees,” the complaint alleges the NCAA and Division I Member Schools “have jointly agreed, and conspired, to deprive student athletes of lawfully-earned, modest wages and of equal treatment” in violation of the FLSA.[4]  The complaint further alleges that these “violations of law are ongoing” and “willful.”[5]

As relief, Ms. Sackos seeks an order to force the NCAA and Division I Member Schools to begin recognizing student athletes as work-study employees and paying them at least minimum wage.[6]  She also seeks unpaid wages, interest, attorney’s fees, and court costs.[7]

The NCAA’s Point of View

Although the NCAA has yet to file a formal answer to Ms. Sackos’ complaint, the NCAA’s chief legal officer, Donald Remy, issued a statement indicating that the NCAA is “currently evaluating the complaint, but disagree[s] that student-athletes are participating in athletics as employees.”[8]  According to Sackos’ complaint, her attorney approached both the NCAA and the commissioners of the Division I Member Schools in an attempt to resolve her complaints without litigation.[9]  None of the commissioners responded, and the NCAA replied that “NCAA regulated sports are extracurricular activities . . . ‘conducted primarily for the benefit of the participants as part of educational opportunities,’ and, thus exempt from FLSA requirements.”[10]

So Who’s Right?

In distinguishing NCAA sports from extracurricular activities, the complaint notes that, unlike NCAA-regulated sports, extracurricular activities tend to be “organized as student groups, and run by students,” are typically related to academic pursuits and are not subject to the “myriad of rules” and regulations that accompany NCAA-regulated sports.[11]  In addition, participants cannot be “compelled or mandated” to participate in extracurricular activities as they can be “under signed agreement[s] in accordance with NCAA Bylaws . . . .”[12] The complaint also distinguishes the coaching staffs of the regulated sports from extracurricular activities’ faculty advisors, noting “[f]ull-time university employees [i.e. coaches] are not hired, and paid salaries, for the sole purpose of supervising” extracurricular activities. [13]

The Bottom Line

Noting that students selling programs or ushering at school athletic events are treated as employees and paid at least minimum wage, the complaint asks, “Is the NCAA really going to contend that student athletes on the game field should not be treated similarly?”[14]  It appears the answer to that question is yes, and it will remain so unless the federal court finds otherwise.  For now, those wishing to play college sports will have to play for the love of the game and forego the minimum-wage paycheck.


 

 

 

[1] Complaint and Jury Demand at 9, Sackos v. NCAA, No. 1:14-CV-1710 WTL-MJD.  See the full complaint online at http://prawfsblawg.blogs.com/files/244310651-ncaa-lawsuit-filed-by-samantha-sackos.pdf.
[2] Id. at 15.
[3] Id. at 17-9.
[4] Id. at 19.
[5] Id. at 13.
[6] Sackos at 25.
[7] Id. at 24-5.
[8] Steve Berkowitz, New Lawsuit Targets NCAA and Every Division I School, USA TODAY Sports (Oct. 23, 2014, 6:20 PM), http://www.usatoday.com/story/sports/college/2014/10/23/ncaa-class-action-lawsuit-obannon-case/17790847/.
[9] Sackos at 20.
[10] Id.
[11] Id. at 21.
[12] Id.
[13] Id.
[14] Sackos at 22.

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