PHILADELPHIA (CN) — Current and former college athletes from Division I schools who are suing the NCAA over its failure to pay them an hourly wage made some headway with their case at oral arguments Wednesday before the Third Circuit.
“This is a very specific case that involves student athletes who dedicate a tremendous amount of their time and are completely controlled, to the serious detriment of their academic development,” said Wigdor attorney Michael Willemin who represents the athletes led by Villanova's Ralph “Trey” Johnson.
Willemin noted that the NCAA's control over student players includes everything from whether they can gamble, disparage another school or even pursue a major whose classes might conflict with practice times. Students who miss practice get fired, the lawyer added.
Steven Katz of the law firm Constangy Brooks argued before the appellate panel in Philadelphia for the NCAA and for the schools like Villanova, Duke and the University of Oregon that are named as defendants. He warned that sending the case to trial would create “a minefield of unforeseen consequences.”
U.S. Circuit Judge Theodore McKee didn’t appear to be swayed, however, by the high stakes.
“If the athletes win, it would clearly create some real issues. That doesn't mean they’re wrong, it just means that built into what we have today — in this modern universe of a billion-dollar college sports activity — there are some real problems,” the Clinton employee told the NCAA lawyer.
As a nonprofit organization, the NCAA makes its financial statements public. Those records show that last year alone marketing, sports merchandise and TV contracts brought in $870 million. Coaches, college administrators and sports facilities all rake in millions from the enterprise. By considering the players as amateurs, however, the NCAA does not pay athletes on an hourly basis in the same way that other campus employers compensate their student workers.
Willemin said the payment model that they are seeking would be similar to how those in work-study programs are paid, and that this would be appropriate since many of the players average more than 30 hours per week for time spent on their sports.
U.S. Circuit Judge Felipe Restrepo, an Obama appointee, asked the attorney if he thought such a thing as amateurism existed in this context.
“They’re employees,” Willemin responded, saying that with its strict rules “the NCAA has turned the idea of student athletes on its head.”
Restrepo, in turn, asked Katz about the economics of the suit.
“How do the economic realities — across the board, all the sports at all the D-1 universities — how does that play into how we should come out?” Retrepo said.
“Economic reality is not simply a matter of whether the activity generates money, because it’s a slippery slope from that idea to the idea that employment status somehow turns on profitability,” Katz said.
“If the plaintiffs’ analysis is correct, where does it end?” Katz asked.
He maintained that Division I athletes are amateurs by virtue of the fact that they play with no expectation of pay.
Willemin, the athletes’ lawyer, said that this isn't supported by Supreme Court precedent.
“The Supreme Court has routinely held that you cannot waive your right to the minimum wage under the Fair Labor Standards Act,” Willemin said.
“The court held that, if an exception to the FLSA were carved out for employees willing to testify that they performed work voluntarily, employers might be able to use superior bargaining power to coerce employees to make such assertions or to waive their protections under the act, and the Supreme Court said they can't do that,” he explained.
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