Days after the N.C.A.A.’s decision to consider allowing college athletes to profit from the use of their names, images and likenesses, a class-action lawsuit has been filed arguing that it was not enough — that athletes should be paid like employees.
Trey Johnson, a former Villanova defensive back who is playing in the Canadian Football League, is suing the N.C.A.A. and many of its member schools, accusing them of violating minimum-wage laws by refusing to pay their athletes.
Other efforts to force colleges to treat athletes as employees have failed. This suit, filed on Wednesday in the United States District Court for the Eastern District of Pennsylvania, argues that athletes’ hours are tracked in the same way as those of students in a work-study program, and that if student ticket-takers, seating attendants and concession workers are being paid at least a minimum wage, the players performing on the field should be, too.
“The N.C.A.A.’s recent move to permit student athletes to benefit from their name, image and likeness illustrates that the untenable amateurism model is simply a smoke screen used to protect the pockets of the N.C.A.A. and its member schools,” said Michael J. Willemin of the Manhattan firm Wigdor Law LLP. “By refusing to pay athletes the minimum wage, the N.C.A.A. is essentially saying that it is O.K. for athletes to be paid, as long as someone else is cutting the check.”
The N.C.A.A. did not immediately respond to a request for comment.
The suit is the latest in a long line of attempts to force the N.C.A.A. and its 353 Division I member schools to redistribute more revenue to the athletes who fuel the multibillion-dollar college sports industry. A California law signed in September spurred the N.C.A.A. into action last week, when its board of governors pledged to have a framework in place by January 2021 to let players profit from their fame, with an important caveat: that they not be treated as employees.
Courts and other ruling bodies have been reluctant to blow up the N.C.A.A.’s amateurism model, which was in place long before colleges used TV contracts, shoe company deals and sponsorship agreements to build a business empire. In 2015, the National Labor Relations Board denied a petition by Northwestern University football players to organize a union.
Willemin said that the lawsuit by Johnson seeks a comparable end — that athletes be considered employees — but with a different argument: that schools are violating federal law that requires workers to be paid a minimum wage.
To do so, the lawsuit leans on a 1992 case, Vanskike v. Peters, that the N.C.A.A. has cited to defend itself against previous challenges to its stance that its athletes are not employees. A court ruled in Vanskike that an inmate was not entitled to a litmus test to determine whether he was an employee because it would not “capture the true nature of the relationship” between inmates and state prisons. (The test checks for several markers of an employee, such as whether the person performs work and to what extent the employer controls how the work is completed, such as by setting a schedule.)
The N.C.A.A. has successfully argued that the same exemption should apply to athletes — even though doing so meant that the organization was comparing college athletes to prisoners.
But a more recent case, Livers v. N.C.A.A., which was brought by Poppy Livers, a Villanova teammate of Johnson’s, may have opened the door for such tests, with a judge asserting that colleges should not expect special rules. (The Livers case was withdrawn last year after the N.C.A.A. argued that it had exceeded the statute of limitations.)
These tests are often used to determine how tethered students’ work is to their education, allowing schools to argue that the students were gaining something of value besides pay — as in an internship, for example — and thus were not entitled to a minimum wage. Johnson’s suit attempts to draw a close connection between playing a sport and participating in a work-study program; in both, students’ hours are cataloged by a supervisor.
“We have two hurdles,” Willemin said. “We have to convince a court that employee tests should be conducted, and then we have to convince the court that when you look at the test, the student athletes are employees.”
The suit would cover all student athletes at Division I schools, regardless of what sport they play or whether they are on scholarship. It is not seeking any type of pay scale — only that the minimum wage in each state be applied.
“This is not about being paid hundreds of thousands of dollars, and we are not limiting this case only to the select few athletes that can receive endorsement deals,” Johnson, 25, who is on the practice squad of the Winnipeg Blue Bombers, said in a statement. “We are simply asking the N.C.A.A. to pay its student athletes the basic minimum wage as required by federal law. They pay the students who tear the tickets and sell popcorn at our games. The least that the N.C.A.A. can do for those who bring so much money to the N.C.A.A. and its schools would be to pay them the minimum wage.”