Cornell, Fordham, Villanova Want Fast Appeal on Athlete Pay

Sept. 30, 2021, 5:14 PM

A group of universities including Cornell, Fordham, and Villanova asked the Eastern District of Pennsylvania to allow an immediate appeal of its ruling allowing student athletes to proceed with Fair Labor Standards Act and state wage claims against the schools.

Lafayette College and Sacred Heart University, also named in the complaint, joined in the motion filed Wednesday for interlocutory appeal of the ruling by Judge John R. Padova that denied their motion to dismiss.

The schools said the U.S. Court of Appeals for the Third Circuit should resolve two questions: "(1) Are student-athletes ever ipso facto employees of the schools for whom they compete under the Fair Labor Standards Act? (2) If so, under what circumstances are student athletes ipso facto considered employees of their schools?”

Immediate appeal is necessary because resolution of the issues is “critical to discovery, pre-trial motion practice, and trial of this lawsuit,” the schools said.

The trial court, in reaching its Aug. 25 decision, applied a multifactor test used to assess whether an unpaid intern must be deemed an “employee” under the FLSA and therefore compensated for his work.

The students allege that NCAA sports are not tied to their “formal education program by integrated coursework or receipt of academic credit,” which supports their claim to be employees, the U.S. District Court for the Eastern District of Pennsylvania said.

The complaint also alleges sufficient facts showing that the students’ participation in NCAA athletic activities “interferes with their academic pursuits” which also weighs in favor of finding them employees, the court said.

And the complaint plainly alleges that the students’ participation in interscholastic athletics doesn’t provide them with significant educational benefits, the court said. This too weighs in favor of finding them employees, Padova said.

The plaintiffs in 2019 collectively sued their schools, the National Collegiate Athletic Association, and 25 other colleges and universities that are either located in the Eastern District of Pennsylvania or compete against schools there.

Padova declined to dismiss the student athletes’ claims against the NCAA on Sept. 22 but tossed the claims against “non attended school defendants"—universities named as defendants that none of the plaintiffs attend—finding they aren’t liable as joint employers.

P.L. McDonald Law LLC and Wigdor LLP represent the plaintiffs. Constangy, Brooks, Smith & Prophete LLP represents the schools.

The case is Johnson v. NCAA, E.D. Pa., No. 19-cv-05230, 9/29/21.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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