By Jonathan L. Israel, of Foley & Lardner LLP
If college athletes are employees under the National Labor Relations Act (“NLRA”), then why not under the Fair Labor Standards Act (“FLSA”)? That proposition predictably follows from the recent determination by the Chicago Regional Director of the National Labor Relations Board (“Board”) that Northwestern University’s scholarship football players are employees under the NLRA and thus could unionize and bargain collectively over the terms and conditions of their “work” playing football — an issue now currently under review by the full Board. With plaintiff’s-side employment lawyers surely salivating over the prospects of college athletes as employees, it was only a matter of time before a college athlete would assert employee status under the FLSA and sue a school for unpaid wages.
And now that lawsuit is here. Last week, a putative FLSA collective action — Sackos v. NCAA, et al. — was filed in an Indiana federal district court. The plaintiff-athlete, a former soccer player at a university in Houston, alleges that the NCAA and its Division I member schools violated the FLSA by failing to pay their respective college athletes for their hours “worked” practicing and playing collegiate sports. Attempting to cast a collective net around the NCAA and its member schools, the Complaint alleges that the NCAA’s overarching bylaws and regulations prohibit its member schools from recognizing student athletes as temporary employees under the FLSA and paying them wages, and, as a consequence, students are unpaid for their services as athletes. The Complaint contends that unpaid college sports are no different than the temporary jobs (e.g., tour guides, cafeteria attendants) that are available through work-study programs and (in stark contrast) pay participants an average hourly wage of around $9.
Notably, the Sackos Complaint makes no reference to the Northwestern case, which surely was the impetus for filing and could provide a measure of persuasive support to the claim of employee status under the FLSA. Beyond that, however, the Northwestern case (which was decided under the NLRA) creates no legal mandate that the plaintiff in Sackos (orany college athlete) is an employee under the FLSA, and she and any similarly situated comrades will need to meet the FLSA’s own definition of employee. To that end, the Sackos Complaint begins to carve out critical distinctions between the two cases. For example, to establish employee status in the NLRA context, player scholarships were deemed “compensation” for the football services rendered. Conversely, in Sackos, scholarships are presumed irrelevant, as the question of employee status under the FLSA will turn on whether the athletes performed work, irrespective of whether they were paid or unpaid or were scholarship or walk-on players. Indeed, for support, the Sackos Complaint audaciously lauds NCAA bylaws which state that scholarships are not compensation or wages. This is hardly surprising given that the imagined pot of unpaid wages for the collective group here would be significantly larger without having to offset for scholarship amounts already given to the student-plaintiffs.
The current system of collegiate sports is under attack and a redistribution of money to student athletes seems inevitable. This is the common objective across various fronts which include the unionization efforts at Northwestern (and possibly other schools), the highly-publicized antitrust cases concerning scholarship limits and likeness rights (see the O’Bannonand Alston/Jenkins cases), and now the collective wage-hour action in Sackos, which is a “show-me-the-money” play in the most direct sense. Who knows where it will end, as the same employee/work arguments concerning student athletes seem just as easily made for students involved other extracurricular activities such as marching band, orchestra, drama, or the school newspaper. What about high schools and the commercialization of their student athletes whose “work” is now regularly shown on cable television? If Sackos is the truth, then the FLSA and child labor laws are arguably violated at that level. Alarmist rhetoric? Maybe, but Sackos may bear serious attention, even as incredible as its wage claim may seem, and the standing decision in Northwestern should be a jolting reminder to those who might think otherwise. Stay tuned.
