The 9th U.S. Circuit Court of Appeals has affirmed the 2017 ruling of a district judge from the Northern District of California, finding that a former University of Southern California football player was not an employee of the National Collegiate Athletic Association or the PAC-12 Conference, and is not owed payment for his work as an athlete while attending the university.
“(Plaintiff Lamar) Dawson cannot demonstrate that the NCAA or the PAC-12 had the power to fire or hire him,” according to a panel of appellate judges. “(Dawson’s allegations) demonstrate that the NCAA functions as a regulator, and that the NCAA member schools, for whom the student-athletes allegedly render services, enforce regulations.”
Hackney Publications Senior Writer Jeff Birren said the ruling was “interesting, but hardly a surprise.” Birren, who attended the district court’s hearing on the motion to dismiss and wrote about it for SLA, noted that that district court’s finding that that the Dawson claim was based on “an untenable theory” may have predicted the outcome. Further, the plaintiff “faced the problem of stare decisis in the circuit since the 9th Circuit ruled against compensation in O’Bannon, with Thomas dissenting.”
About the Complaint
Birren wrote that the first cause of action (“CoA”) was filed as a class action for violation of minimum wage based on the Fair Labor Standards Act (“FSLA”) (29 U.S.C. 218(a)). The second CoA was for failure to pay overtime, filed on behalf of the California class. The third CoA was for failure to pay overtime on behalf of the FSLA class. The fourth CoA was for unlawful failure to pay overtime on behalf of the FSLA class. The fifth CoA was for unlawful failure to provide itemized wage statements on behalf of the California class. The sixth CoA, also on behalf of the California class, was for failure to pay wages upon termination. The seventh CoA was for unlawful underpayment of wages on behalf of the California class. The eighth CoA was for untimely payment of wages on behalf of the California class. The ninth CoA was as an action under California’s Private Attorneys General Act on behalf of the California class. The tenth and final CoA was for unlawful failure to pay overtime on behalf of the FSLA class. In sum, all ten causes of action required a finding that the plaintiff class were all employees of the NCAA and the Pacific 12 Conference.
The Window Closed on Dawson
“The year before the Dawson complaint was filed, there may have been room for optimism,” wrote Birren. “The District Court decision in O’Bannon had allowed schools to make deferred payments to athletes for in return for the use of their name, image and likeness, and the Martin Jenkins v. NCAA case had been filed, seeking an end to all payment restrictions to college athletes. Then the tide turned.
“It began with the Ninth Circuit’s opinion in O’Bannon v. NCAA (802 F. 3d 1049 (September 30, 2016)). That court concluded that in allowing for deferred payments the District Court ‘clearly erred,’ and that paying athletes anything beyond expenses was a ‘quantum leap’ (Id. at 1077, 1080). Next came the District Court ruling in the Berger case in early 2016.
“Later that year the District Court that had ruled in O’Bannon dealt with Jenkins v. NCAA. The court declined to dismiss Jenkins, but noted that the O’Bannon decision ‘simply forecloses one type of relief Plaintiffs previously sought: cash compensation untethered to education expenses’ (Jenkins v. NCAA, No. C 14-2758 CW, Docket No. 459) (See ‘What to Make of Martin Jenkins et al v. NCAA In Light of O’Bannon,’ SLA Volume 13, Issue 23, 12-9-16). Finally, in December 2016 came the Seventh Circuit’s Berger opinion.
“Back in March these pages predicted that ‘the task ahead of Dawson may be Herculean’ (SLA Volume 14, Issue 5, 3-17-17). In view of how quickly the Dawson complaint was dismissed following the (motion to dismiss) hearing that may have been understated.”