NCAA Leans on Slavery Loophole as Attorney Fights for Athlete Minimum Wage

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If a work-study student is paid on an hourly basis to sell popcorn at games, shouldn’t their classmate playing in those games also be paid an hourly rate?

That’s the central thesis of Johnson v. NCAA, a case before the U.S. Court of Appeals for the Third Circuit. If Johnson is successful, college athletes would be recognized as employees under the Fair Labor Standards Act. They would then be owed an hourly rate consistent with rates paid to their classmates on work study.

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“The fact [that a student on work study] might get an academic scholarship,” lead attorney Paul McDonald told Sportico in an exclusive interview, and “also work for the university in the dining hall or work at a game as a ticket taker—the university can’t say because you have an academic scholarship that they get to then have you work wherever they want you to work and not pay you.”

McDonald, a graduate of Princeton University and New York University School of Law, has practiced law at two of the country’s most elite law firms, Kirkland & Ellis and Paul Hastings. He also served as senior counsel at Kraft Foods.

McDonald is now leading a case on behalf of unpaid former and current athletes from such colleges as Villanova, Fordham and Cornell. The case hasn’t attracted much attention from the college sports media but is clearly on the minds of the NCAA. The organization recently filed a brief to the Third Circuit in which it maintained that despite losing, 9-0, at the U.S. Supreme Court in NCAA v. Alston, the NCAA’s prohibition against athletes being paid remains good law.

As McDonald sees it, the NCAA is missing the point.

Universities, he says, “have an obligation under law” to pay an hourly rate when a student “does something for them that is not academic in nature.” Historically, this principle hasn’t been especially controversial, including for students with scholarships. That changes, McDonald explains, when it’s applied to college sports.

McDonald also emphasizes that his case is not about college athletes forming a union. Recognition as employees under the FLSA wouldn’t permit college athletes to unionize. To that point, work-study students aren’t in unions; they go to class and do their job. Likewise, whether college athletes ought to be recognized as employees under the National Labor Relations Act—a different federal law that enables work forces to unionize and that has been used in other attempts for employee recognition—is not at issue in Johnson.

FLSA recognition, McDonald notes, also wouldn’t mean athletes are paid their market value. They would be paid an hourly rate around minimum wage. As McDonald writes in the complaint, “student ticket-takers, seating attendants and food concession workers at NCAA contests are paid on a minimum wage scale averaging $10.53 to $13.36 per hour under work study.”

McDonald also stresses that Johnson succeeding would benefit both male and female athletes. He notes that in Justice Brett Kavanaugh’s concurring opinion in Alston, Kavanaugh referenced practical questions that still need to be resolved.

“The idea of a stable way of paying all student athletes in compliance with Title IX,” McDonald noted, was one of Kavanaugh’s questions. McDonald has an answer for Kavanaugh: “That’s our case!”

McDonald goes on to say that “no one” with a “serious face” would argue that if an athlete were paid $25 an hour that such an arrangement “would somehow bankrupt the universities when every week we hear about another coach getting an extension of several million dollars.” McDonald maintains the math makes this clear. Since NCAA rules limit college athletes to 20 hours per week on their sport, 20 hours a week would mean $500 a week or $2,000 a month, which if paid over a four- or five-month season would mean the athlete is paid the ballpark of $8,000 to $10,000 (plus smaller amounts for work put in during the offseason).

“The notion that the sky will fall is well overstated.”

McDonald also takes issue with the NCAA’s use over the years of a case, Vanskike v. Peters, which concerned the so-called “slavery loophole” in the Thirteenth Amendment to the U.S. Constitution. The Thirteenth Amendment abolished slavery and involuntary servitude, but prisoners do not enjoy that protection. They can be required to work.

McDonald says that the only two cases in American history where the loophole was at issue and that didn’t concern prisoners were both NCAA cases, where the NCAA argued college athletes shouldn’t be paid as employees. McDonald contends a legal argument “comparing student athletes to unpaid prison labor . . . is not sustainable.”

Johnson is unresolved, but McDonald is making progress for his side. Judge John Padova denied the NCAA’s motion to dismiss and found McDonald’s argument persuasive. McDonald explains that if the case wins before the Third Circuit, the NCAA would likely be deemed a joint employer of college athletes, meaning the organization is responsible to pay them if their schools don’t. The impact of the case would go beyond the Third Circuit, too.

While McDonald acknowledges he lacks the fame of Jeffrey Kessler and other high-profile sports litigators, he has nonetheless gained attention from influential persons. One is civil rights leader Reverend Al Sharpton, who has twice had McDonald as a guest on his national radio show, Keepin’ It Real. Sharpton described Johnson as involving “a civil rights issue, straight down the middle, no doubt about it” and a case that brings attention to “an injustice that is blatant.”

McDonald noted that a successful litigator has to be able to tell a story that makes sense. He’s skeptical attorneys retained by the NCAA can pull that off in Johnson.

“In order to try to prevail,” McDonald predicts, the NCAA “is going to have convince anyone, not just a jury, but judges on appeal, the American public, that the kid who is selling you popcorn at the game, the kid who took your ticket, the kid who told you where to sit at the game—everyone knows they’re employees—[the NCAA] would have to convince people that while you know they’re employees, student athletes aren’t.”

To watch the entire interview, click here.

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