NCAA Athletes Score Another Chance to Debate ‘Slavery Loophole’

On Thursday, the U.S. Court of Appeals for the Third Circuit granted a motion by former Villanova football player Trey Johnson and other athletes to file a new brief addressing whether the “slavery loophole” is a viable defense to not paying them. This move signals keen interest in arguments that college athletes are employees.

Judge L. Felipe Restrepo, on behalf of himself and Judges Theodore McKee and David Porter, granted the motion, which centers on the relevance of Vanskike v. Peters. The 1992 case from the Seventh Circuit considered whether prison inmates are FLSA employees and are owed minimum wage and overtime pay. In Vanskike, the court held that inmates aren’t employees because while the Thirteenth Amendment to the U.S. Constitution abolished slavery and involuntary servitude, it carved out an exception “for punishment for crime whereof the party shall have been duly convicted.” As a result, prisoners can be required to work and are not FLSA employees.

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The NCAA argues Vanskike has been cited for general FLSA principles in non-prisoner contexts, including cosmetology students who have been deemed interns rather than FLSA employees despite “working” in salons. In the 2016 decision of Berger v. NCAA, the Seventh Circuit held that college athletes aren’t FLSA employees and—as the NCAA spins it—cited Vanskike for the principle that FLSA recognition isn’t suitable when there is no bargain for compensation.

Attorney Paul McDonald, who is litigating on behalf of the players, contends the NCAA has misconstrued precedent. “The NCAA has repeatedly argued that Vanskike ought to be applied to student Athletes and, in so doing, has sought to mislead courts by falsely asserting that Vanskike has been applied to non-prisoners,” he charges. McDonald believes Thursday’s order to permit additional briefing suggests the Third Circuit “might be skeptical of the NCAA.”

The key question before the Third Circuit is whether a federal district judge applied the correct standard in denying the NCAA’s motion to dismiss. If the Third Circuit sides with the players, it would advance the players’ case that college athletes should be treated at least as well as their work-study classmates, some of whom are paid to work at games played by unpaid athletes. In June, the Southeastern Conference and a group of education associations filed amicus briefs claiming that if colleges must pay athletes as employees, many schools would cut teams.

The three-judge panel has tentatively scheduled a hearing on Dec. 15 in Philadelphia. The panel might invite the attorneys to deliver oral arguments. Alternatively, it could cancel the hearing and decide the case on the written briefs. Either way, no decision is expected until 2023.

Johnson v. NCAA is one of several legal efforts seeking enhanced compensation for college athletes, with colleges, conferences and the NCAA all potential payors. House v. NCAA, which is before a federal court in California, demands unpaid NIL and TV money for college athletes.

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