SAN FRANCISCO (CN) — A federal judge Tuesday dismissed with prejudice a former USC football player’s class action claim that the NCAA has an employment relationship with student athletes and must pay them for their time on the field.
U.S. District Judge Richard Seeborg granted the National Collegiate Athletic Association’s motion to dismiss the proposed class action without leave to amend, concluding that the claims are “based on an untenable legal theory” that courts have repeatedly rejected.
“Leaving aside the policy question of whether and how Division I FBS [Football Bowl Subdivision] college football players should be compensated, there is simply no legal basis for finding them to be ’employees’ under the FLSA [Fair Labor Standards Act],” Seeborg wrote in a 12-page order.
Lamar Dawson, who played for the University of Southern California from 2011 to 2015, sued the NCAA and Pac-12 Conference last year, claiming they failed to pay him for the time he spent practicing and playing, in violation of the Fair Labor Standards Act and the California Labor Code.
The NCAA and Pac-12 denied that Dawson was their employee, citing the Seventh Circuit’s 2016 ruling in Berger v. Nat’l Collegiate Athletic Ass’n, which held that former student athletes of NCAA Division I schools are not employees under the FLSA.
At an April 20 hearing, Dawson’s attorney Mark Rifkin said that Berger is irrelevant because it involved track and field athletes, while Dawson’s case involved Division I football players, who create huge profits for their schools.
Rifkin urged Seeborg to consider the Ninth Circuit’s ruling in O’Bannon v. Nat’l Collegiate Athletic Ass’n, which found that the NCAA violated antitrust laws by prohibiting payments to student athletes. Dawson said that ruling defined the relationship between student athletes and the NCAA as “labor for in-kind compensation,” which qualifies as an employment relationship under the FLSA.
But Seeborg on Tuesday called the Berger ruling “persuasive,” and found that Dawson failed to cite any cases to support his argument that revenue generation can establish an employment relationship. The judge added that most courts have found that student athletes are not employees, and the Department of Labor does not consider them employees under the FLSA.
“The premise that revenue generation is determinative of employment status is not supported by the case law,” Seeborg wrote. “Indeed, in examining the ‘economic reality’ of the relationship between student-trainees and their schools, courts have rejected the relevance of profitability.”
He also rejected Dawson’s O’Bannon argument, concluding that the Ninth Circuit in O’Bannon did not establish an employment relationship between student athletes and the NCAA.
NCAA chief legal officer Donald Remy said Wednesday that the association is pleased with the ruling.
“As we have said in this case and others before it, there is no legal support for the idea that college athletics participation makes a student a university employee,” he said. “Playing college sports allows students to get a quality education and build skills to prepare them for success after college. It is unfortunate we must continue to expend resources on cases that copy previously dismissed lawsuits.”
Rifkin told Courthouse News Wednesday that his client intends to appeal the ruling to the Ninth Circuit.
“We are disappointed that the court did not accept our argument that scholarship athletes in a revenue-producing sport, like Division I FBS football, are not employees,” he said.
Rifkin is with Wolf Haldenstein Adler Freeman & Herz in New York.
The defendants are represented by Steven Katz with Constangy, Brooks, Smith & Prophete in Los Angeles.