Southeastern Conference Amicus Brief in Johnson v. NCAA Warns Court –

In the last sign that Johnson vs. NCAA— a federal case that argues college athletes should be paid at least as much as their work-study classmates — worries the establishment, the Southeastern Conference and a group of 13 education associations have submitted briefs from amicus at the United States Court of Appeals for the Third Circuit. They urge the appeals court to overturn U.S. District Judge John Padova’s ruling that denied NCAA’s motion to dismiss and upheld recognition of college athletes as employees under Fair Labor Standards Act.

Sportico obtained the two briefs, which were filed on June 7.

The SEC’s interest in the case is clear even though none of the conference’s 14 member universities reside in the Third Circuit region (Pennsylvania, New Jersey, Delaware and the Virgin Islands). These members are more likely to be considered employers, and the conference is more likely to be considered a joint employer, if Johnson succeeds. Schools and the conference are dreading new labor costs, especially when, according to the SEC, most colleges are already losing money in athletics.

The American Council on Education, Association of Public and Land-grant Universities, Association of Catholic Colleges and Universities, and Council for Christian Colleges & Universities are among 13 education-related groups filing a joint brief. They represent and lobby on behalf of many schools and university leaders. Like the SEC, these associations recognize the paradigm shift that would occur if college athletes were to be granted minimum wage and overtime protection.

To be clear, if Johnson prevails, it would not lead to million-dollar contracts for college athletes, or allow those athletes to unionize. As Johnson Lead Counsel Paul McDonald recently said Sportico in a exclusive video interviewFLSA recognition would mean athletes are paid like their work-study classmates, some of whom receive scholarships, for part-time work.

McDonald speculates that college athletes are paid $25 an hour and, if they work up to the NCAA’s 20-hour-per-week limit, earn $500 per week and $2,000 per month for a four or five month season (and earn less in the off season). ). Especially since colleges have long offered co-op students and the average salary for an FBS football coach was $2.7 million in 2020, according to UNITED STATES TodayMcDonald scoffs at fears that the FLSA job would somehow bankrupt schools.

Yet, insisting that playing a sport “should be classified as an extracurricular educational activity” rather than a work-related activity, the SEC argues that schools that pay athletes a co-op salary would be prohibitively expensive. “The overwhelming majority of colleges and universities,” notes the SEC, “must subsidize intercollegiate sports from other sources of revenue.” If a school has 400 athletes and each pays $2,000 a month during the season, the cost would be $800,000 a month – a figure some schools might argue is inconsistent with their economy, although athletics often provide value additional in terms of alumni fundraising, admissions and marketing.

Building on this same theme, the associations’ brief observes that “only about 2% of the NCAA’s 1,100 member institutions had athletic departments that generated enough revenue to cover operating costs in 2019, and l ‘overwhelming majority of the NCAA’s 500,000 student-athletes compete on teams that generate little or no revenue. fundamentally, enrich the educational experiences of students”.

Both briefs warn that recognizing athletes as employees would challenge a “one-size-fits-all understanding” enunciated by courts, federal agencies and statutory acts that playing varsity sports “should not be considered work by a employee”. At this point, two other federal circuit courts — Seventh and Ninth — have denied petitions to recognize college athletes as FLSA employees.

The SEC is concerned about a “divided circuit,” where appellate courts make conflicting rulings on the same question of law. In this case, college athletes would become FLSA employees in the Third Circuit while Seventh and Ninth Circuit case law (covering 12 Midwestern and West Coast states plus Guam and the Northern Mariana Islands) indicates that they would not be employees. Meanwhile, in the other nine regional circuits — including those that govern SEC schools — that issue would go unresolved.

The SEC also emphasizes a field operations manual Published by the US Department of Labor. The manual is not “law”, but serves as an internal handbook for agency employees and has been cited by the courts as a persuasive authority. The relevant portions of the manual, according to the brief, have been in place since “at least 1993.” They state that “college athletes who participate in activities generally recognized as extracurricular are generally not considered employees” and that participation in “intramural and intercollegiate athletics” is not intended to be construed as ” work” in the context of the LSF.

Echoing the same sentiments, educational associations argue that Johnson is “built on a false narrative that student-athletes are exploited by colleges and universities for profit.” In the eyes of associations, Johnson prevailing would unleash what could be described as a parade of horribles.

“If colleges and universities are forced to pay their student-athletes,” the associations warn, “it is inevitable that many schools will simply eliminate track and field teams, with sports teams with no revenue being the most likely to be on the log. The result would be far fewer opportunities for students to enjoy the benefits of intercollegiate athletics.

The association also envisions a world where “schools that decide to continue fielding teams in revenue-generating sports would be forced to compete for athletes and retain them by offering increasingly higher salaries, including, potentially , to professional athletes who offer their services to the highest bidder”. Moreover, in this world, “campus life and academics would become an afterthought” and “education through athletics” would turn “into a professional sports enterprise”.

McDonald’s tells Sportico that in his view, the briefs of the SEC and the education associations miss the point of the appeal, distort the law and promote pipe dreaming points of view while ignoring modern realities.

“The only issue in the appeal,” points out the Princeton University and NYU law graduate, “is the legal standard for a motion to dismiss.” In pushing back against past efforts by college athletes to gain recognition as employees under the FLSA, the NCAA pointed to case law (Vanskike v. Peters) stating that while the 13th Amendment abolished slavery and involuntary servitude, there is a so-called “escape from slavery” for prisoners and, arguably, college athletes. The key question for the Third Circuit is whether Judge Padova applied the proper test in denying the NCAA’s motion to dismiss.

McDonald’s, while referring to a South Park episode which satirized the NCAA and member schools as slave owners, find it telling that a fundamental defense against paying college athletes is the escape from slavery. “The fact that the NCAA – and now the SEC – is actually relying on legal precedent regarding the 13th Amendment slavery loophole to defend the exploitation of student-athlete free work broadcasts, in this case, truth is stranger than fiction.”

McDonald also questions the SEC’s emphasis on the Department of Labor handbook. He says the manual is “not relevant at the motion to dismiss stage” and thinks it is “not particularly compelling either.” McDonald points to the United States Supreme Court’s decision in Skidmore vs. Swiftin which the Court minimized the importance of internal agency observations when achieved without accompanying procedures involving conflicting parties. These observations, the Court held, are not binding (although courts have cited the manual as authoritative).

McDonald also argues that while the handbook was as authoritative as the NCAA and SEC suggest, its reference to non-employment activities contemplates student-run club sports, not NCAA sports. Either way, he says, a non-employment activity must, in the words of the manual, be “conducted primarily for the benefit of the participants within the educational opportunities provided to students by the school.” McDonald says, “Common sense tells us that NCAA sports are not conducted primarily for the educational benefit of participants, but rather, in fact, constrain and interfere with educational activities.”

Finally, McDonald finds him “more than a little paternalistic, and condescending, for the [13 associations] deign to speak on behalf of student-athletes, who can speak for themselves,” including in depositions and affidavits.

Maybe these athletes will get the chance should Johnson advance.

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