By: Jason J. Englund and Giselle Donado

A collective action filed last month in the Southern District of Indiana seeks unpaid wages on behalf of NCAA college athletes, claiming that student athletes are “employees” under the Fair Labor Standard Act and entitled to at least the minimum wage.  A former women’s soccer player at the University of Houston filed the suit, naming the NCAA and all Division I schools as defendants.

The former forward’s suit is only the latest shot aimed at NCAA rules preventing college athletes from receiving pay for their play on the field.  The National Labor Relations Board is currently reviewing the much-discussed decision by an NLRB Regional Director last Spring deeming Northwestern football players “employees” under the National Labor Relations Act and holding that the athletes must be permitted to organize. (Please see the blog posts here and here from our colleagues who blog about Employer Labor Relations.)  The NCAA is also playing defense on the antitrust front, where it is currently appealing a ruling in a California court last August, which blocked the NCAA from enforcing its rules preventing college athletes from being paid for use of their names and likenesses.

In the newly filed FLSA suit, the plaintiff seeks to represent a sprawling class consisting of “all NCAA Division I student athletes participating in women’s and men’s sports” for the past three years, arguing that each of these schools is subject to the same NCAA bylaws that prohibit payment to college athletes.  The plaintiff argues that student athletes should be compensated as temporary employees for their work on the field just as students who participate in other work study programs.  The plaintiff asserts that student athletes put in long hours—between 30 and 40 hours per week, depending on the sport—and confer substantial benefits on the NCAA and member schools without receiving any wages for their efforts.   The plaintiff points out those universities pay the students who usher and sell concessions at the games, but not the athletes who make the games possible.

This latest volley at the NCAA is of interest not only to sports fans, but employers everywhere.  The suit reflects the continuing trend of challenges to work study and unpaid internship programs, which we have previously covered on the Firm’s Wage & Hour Litigation Blog (see, for example, here and here).  Employers should carefully review any internship programs, training programs, or other programs that receive valuable service from individuals who are not paid.

The NCAA suit is also noteworthy in that the plaintiff sued not only her dear old alma mater, but also the NCAA and all member schools, advancing a theory that the defendants jointly conspired to deprive athletes of pay.  The suit is likely to raise questions of joint employer liability and should be watched closely by employers who use third parties to administer unpaid internship programs.

Just as this suit challenges a relationship between universities and athletes that has persisted for decades, even the most longstanding unpaid internship programs and related practices may be challenged.  Regardless of what happens in the NCAA’s series of matches against student athletes, plaintiffs lawyers will continue seeking to score off employers who even arguably receive services for free.

For additional information on this topic, please contact the authors or our Seyfarth attorney.