NCAA Ushers Dog Groomers, Strippers Into Athlete Employee Case

On the same day the Big Ten announced a seven-year, $7 billion deal to televise games played by college athletes, attorneys for the NCAA filed a brief citing cases involving dog groomers, exotic dancers and aspiring cosmetologists to insist that college athletes aren’t employees.

The brief is the latest development in Johnson v. NCAA, wherein current and former college athletes argue that students playing college sports ought to be classified as employees under the Fair Labor Standards Act (FLSA). FLSA classification would mean that college athletes are treated like their non-athlete, work-study classmates—some of whom, like athletes, have scholarships and are paid to work around campus, at places such as the library, dining hall, or the ticket counter or concession stand at games. As FLSA employees, college athletes would be owed minimum wage and related benefits but would not be able to unionize (absent other legal developments). Johnson is currently before the U.S. Court of Appeals for the Third Circuit after Judge John Padova denied the NCAA’s motion to dismiss last fall.

More from Sportico.com

Much of the NCAA’s 53-page brief urges the Third Circuit to carefully consider Berger v. NCAA. In 2016, the Seventh Circuit held that college athletes aren’t employees under the FLSA. The Third Circuit, as a different federal court of appeals, isn’t obligated to reach the same decision. However, the NCAA contends the Seventh Circuit correctly reasoned that playing college sports doesn’t constitute “work” in the employment sense.

In Berger, the Seventh Circuit drew from Vanskike v. Peters, also a Seventh Circuit case and one that concerned whether prison inmates are FLSA employees. Inmates, the Seventh Circuit reasoned, aren’t employees in part because of the so-called “slavery loophole” in the 13th Amendment to the U.S. Constitution. The 13th Amendment abolished slavery and involuntary servitude, except for convicted criminals, who can be required to work and thus engage in involuntary servitude.

As the NCAA tells it, the Seventh Circuit didn’t compare college athletes and prisoners. It instead, “cited Vanskike because multi-factor tests used in independent contractor disputes fail to capture the ‘economic reality’ of student athletics, where there is no compensation bargain.”

The NCAA maintains that Vanskike has been invoked for “general FLSA principles” in a wide range of cases where courts examined FLSA disputes. One of those cases, Steelman v. Hirsh, involved a dispute over employment status at a North Carolina dog-grooming business, Hair of the Dog. The court found that a couple who were romantically involved and who shared dog grooming and other tasks did so as part of an “intended lifetime partnership” rather than a “bargained-for exchange of labor.” Other cases cited by the NCAA concerned: car wash workers, construction and maintenance workers, cosmetology students, delivery drivers, exotic dancers, garbage workers, garment workers, home health workers, hospital case managers, minor league baseball players, office clerks, restaurant workers, retail managers, roadside assistance drivers, salespersons, sports coaches, and security guards.

The NCAA criticizes the Johnson plaintiffs for “not account[ing] for cosmetology students who work under instructor supervision in for-profit beauty salons but are regularly held to meet the student-intern test.” In those cases, aspiring cosmetologists “work” by practicing on members of the public who are willing to have a student stylist take care of their hair and other beauty needs, but their work is not part of any employment. Analogizing that reasoning to college athletes in a light favorable to the NCAA, college athletes also perform “work” under supervision but (arguably) without an expectation of employment.

Similarly, the NCAA highlights a case involving a plaintiff who, while participating at an in-patient substance abuse rehabilitation program in lieu of criminal charges, was required to work in a garbage room and other locales. The plaintiff failed to convince a court that he became an FLSA employee through his required tasks. Those activities, the court reasoned, served “rehabilitative purposes” to ease the patient’s transition back to the outside world and equip him with “skills and habits” that would make him less likely to return to criminal behavior. The patient’s “work” was therefore not part of bargained employment.

The NCAA citing a case involving exotic dancers at the Pink Monkey in Chicago is also revealing. In Labriola v. Clinton Entertainment Management, a court assessed whether dancers who were paid for “cabana dances” and for “private dances,” which “varied based on the length of the dance and whether the customer paid case or by credit card,” ought to be classified as FLSA employees. There the court found the dancers had offered sufficient facts that they were employees, given, among other reasons, the dancers were required to obey various club rules and failing to do so could result in a confiscation of tips. However, the court also found the dancers were unable to establish they were owed overtime pay under the FLSA.

Name, image and likeness also surfaces as a key point in the NCAA’s brief, which was authored by attorneys at Constangy, Brooks, Smith & Prophete. The NCAA contends that college athletes profiting from NIL is irrelevant in analyzing whether they are employees of their schools. The NCAA notes that its interim policy “retains the prohibition on paying student athletes to play sport”; that state NIL statutes “typically prohibit schools, conferences or the NCAA from making NIL payments”; and that NIL deals are between college athletes and third parties. The NCAA’s acquiescence to NIL collectives, which are often organized by boosters to help recruit star high school players, arguably raises questions about the degree of separation between a university and NIL.

Attorney Paul McDonald, who is litigating on behalf of the players in Johnson, contends the NCAA’s brief is both inaccurate and disingenuous—and that it won’t persuade the Third Circuit.

“The NCAA,” he told Sportico in an emailed statement, “made the same false assertion that Vanskike v. Peters, and its 13th Amendment ‘slavery loophole’ holding, are regularly applied outside the prison labor context in briefing before Judge Baylson in Livers v. NCAA, and before Judge Padova in this case. Based upon a thorough dissection of cases mis-cited by the NCAA, both those Senior District Court Judges flatly rejected the NCAA’s mischaracterizations. Vanskike v. Peters says what it says. It is disturbing that the NCAA repeatedly attempts to mislead courts to mis-apply it to Student Athletes.”

There is no timetable on when the Third Circuit will decide whether to affirm or reverse Judge Padova. Barring a settlement, the case could remain in litigation for years.

Best of Sportico.com

Click here to read the full article.