Johnson Lawyers Argue NCAA’s Use of ‘Amateurs’ Is Meaningless, Seek Discovery

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The NCAA can call college athletes as “amateurs,” but that designation shouldn’t prevent schools from recognizing those athletes as employees, a new court filing in Johnson v. NCAA insists.

On Thursday, attorneys for former Villanova football player Ralph “Trey” Johnson and other current and former athletes filed a 55-page brief with the U.S. Court of Appeals for the Third Circuit. Sportico has obtained the brief.

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The players asked the court to affirm a favorable ruling by a federal district judge last year and to remand the case for pretrial discovery. Discovery could lead to the disclosure of sensitive NCAA documents, conference emails and testimony by college officials. Evidence and testimony “discovered” could indicate that college athletes are functioning as employees but not being paid to work, and that college sports leaders view athletes as drivers of revenue more so than students.

Last year, Judge John Padova denied the NCAA’s motion to dismiss Johnson, which argues that college athletes are employees under the Fair Labor Standards Act (FLSA). As FLSA employees, college athletes would be paid like their work-study classmates, some of whom earn wages by manning ticket counters and concession stands at games where the players aren’t paid. The Southeastern Conference and a group of 13 education associations recently filed an amicus brief warning that recognition of college athletes as employees would prove cost-prohibitive for many schools.

Padova reasoned that the players sufficiently stated a claim under the FLSA and analogous state laws. As the players see it, Padova didn’t declare that the NCAA and colleges are players’ employers—“that is a decision for a later day,” their brief cautions. Padova instead held that the NCAA and colleges “are not above the law and must engage in discovery.”

The players’ brief blasts the NCAA for what they describe as asking for deferential legal treatment only a year after the U.S. Supreme Court flatly rejected that approach. In NCAA v. Alston, the players contend, the NCAA and member schools were treated “just like every other business” and thus “subject to ordinary legal scrutiny.” To that end, the Supreme Court rebuked what some have described as the NCAA’s circular reference to college athletes as amateurs—i.e, college athletes are amateurs because the NCAA calls them amateurs.

The brief argues that the “logical conclusion” of the NCAA argument “exposes its absurdity.” The NCAA and schools could, the brief suggests, go so far as to require college athletes “to participate in collegiate athletics 20 hours a day, seven days a week, forbid them from attending classes or even graduating,” and even in that scenario, the NCAA and schools “would not have to comply with the FLSA so long as they referred to them as ‘amateurs.’”

Two other federal circuits, the Ninth and Seventh, have considered FLSA recognition of college athletes and sided with the NCAA, conferences and colleges. Attorneys for Johnson maintain those courts misapplied the law, in part by extending the so-called “slavery loophole” to college athletes. The slavery loophole is narrow carveout to the Thirteenth Amendment’s abolishment of slavery and involuntary servitude in the United States. The Amendment permits involuntary servitude “for crime whereof the party shall have been duly convicted.” This means prisons can require the incarcerated to work without them becoming employees. In past litigations, the NCAA has successfully drawn from case law on prisoners to prevail on arguments that college athletes aren’t employees.

Johnson and the other players are represented by attorneys Paul McDonald—who sat for an exclusive interview with Sportico last month—Michael Willemin and Renan Varghese. It will likely be months before the Third Circuit rules.

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