Collegiate Athlete Pay Will Kill Teams, Educational Groups Say

The American Council on Education and 12 other educational organizations urged the Third Circuit to overturn a ruling that Division I student-athletes may be entitled to pay under the Fair Labor Standards Act, saying it would cause the shutdown of many athletic programs.

If the student athletes prevail in their suit filed in the US District Court for the Eastern District of Pennsylvania, the additional costs borne by colleges “would make fielding teams in most sports cost-prohibitive for all but a handful of athletics departments,” the groups said in a friend of the court brief filed Tuesday in the US Court of Appeals for the Third Circuit.

“The inevitable result” will be that schools will cut sports teams that don’t generate revenue, the groups said in the brief filed in support of the NCAA.

Many college teams, including those for crew, field hockey, and track and field, are expensive to field, the groups told the court. If schools are required to pay those student-athletes, they will choose to eliminate the teams, “to be replaced by intramural competition or student-run club teams,” they said.

The elimination of athletics teams would disproportionately impact smaller schools, “which tend to have fewer resources and whose teams generate less revenue,” the groups said.

Schools that try to maintain sports programs will be forced to raise tuition and fees in order to “subsidize the increased costs,” the groups told the court.

The NCAA is also seeking reversal of US District Judge John R. Padova’s September 2021 decision denying its motion to dismiss the student-athletes’ proposed class action. Padova ruled that the students could pursue their FLSA claims against the NCAA because they plausibly alleged that the athletic association, along with their schools, acts as their joint employer.

Padova however dismissed FLSA and state law claims against “non attended school defendants"—universities named as defendants that none of the plaintiffs attend—finding they aren’t liable as joint employers.

Padova ruled in August 2021 that the student-athletes may proceed with their claims against the colleges and universities they attended.

The plaintiffs are current and former student-athletes who attended and played collegiate sports for Villanova University, Fordham University, Sacred Heart University, Cornell University, and Lafayette College.

Proskauer Rose LLP represents the educational groups. Wigdor LLP and PL McDonald Law LLC represent the student-athletess. Constangy, Brooks, Smith & Prophete LLP represents the NCAA.

The case is Johnson v. NCAA, 3d Cir., No. 22-01223, brief filed 6/7/22.