11th district. A Possible Small Victory for the NCAA in the Athlete Hiring Saga

In a recent ruling against golf attendants, the 11th Circuit may have (very) quietly helped the NCAA in their never-ending legal battles regarding athlete compensation and employment.

In Adams v. Palm Beach County, volunteer golf attendants at a public golf course claimed the County violated the Fair Labor Standards Act (FLSA) by paying them below minimum wage. The county argued that the attendants were not employees and therefore not entitled to compensation. The Eleventh Circuit agreed.

Despite making similar arguments to golf attendants, the Dartmouth men’s basketball team fared much better in their fight over employee status before a regional director of the National Labor Relations Board (NLRB) in February. Both cases are far from apples to apples for multiple reasons. However, it is hard to imagine that the NCAA (and its member institutions) will not cite this ruling from the 11th Circuit in future litigation regarding college athletes as employees, not to mention the 13 active lawsuits that they are defending. This will be a welcome break for the NCAA, which has struggled to find any legal basis or rationale for its business model. They previously relied on a prison labor case in Johnson v. NCAA which attracted a high degree of public criticism.

The golfing companions in Adams v. Palm Beach County responded to advertisements specifically stating that volunteers were needed to help run the course. They were assigned tasks that a private course would normally be handled by paid employees, such as greeting customers, picking up carts, cleaning golf balls, etc. Unlike employees at a private course, the only benefit or tangible compensation offered to these volunteers was deeply discounted rounds of golf at the course, $5 instead of the normal price of $96, in exchange for 7 hours of work per week.

Volunteer participants claimed that because they were primarily motivated to perform services for the course in exchange for the discount rather than an intrinsic sense of community, they were employees and entitled to minimum wage. Some back-of-the-napkin math estimates the deduction at $13 an hour, which is higher than Florida’s minimum wage. However, the FLSA only considers benefits actually received (ie, only the number of discounted rounds that employees actually played) as potential compensation.

The FLSA defines an employee as any individual employed by an employer, which is not particularly helpful when the issue is employment status. However, the FLSA explicitly excludes public agency volunteers from its definition of employee. The district successfully argued that these attendants were volunteers, thereby invoking the exemption.

The above argument should sound familiar to college sports fans. It is strikingly similar to the arguments surrounding the recruiting of college athletes. Are athletes motivated primarily by non-economic and intrinsic factors to play sports in college, or are they motivated by some form of compensation? They are food, shelter, etc. compensation for employees, or are they reasonable benefits for student-athletes (aka volunteers)? Are discounted rounds of golf essentially the same as athletic scholarships (a tuition discount)?

The 11th Circuit had to decide whether the attendants’ discounted rounds of golf were inadequate compensation or merely a reasonable benefit of their services. A blurred line to be sure. They determined that the discount was not compensation. Conversely, the NLRB determined that non-salary benefits received by Dartmouth basketball players (non-scholarships) in exchange for their services were, in fact, compensation.

There are several important differences between this case and the NLRB’s decision in Dartmouth. However, each comes with some interesting caveats about their applicability to the larger college-athlete personnel debate.

As a private school, Dartmouth athletes could not fall under the public agency volunteer exemption. However, the vast majority of NCAA Division I schools are public schools where that exemption from employee status could be on the table. On the other hand, public schools would not be subject to any decision by the NLRB because the NLRB has no jurisdiction over state employees.

The Dartmouth case determined (for the time being) that men’s basketball players are employees under the NLRA, a different federal statute than the FLSA that was at issue in the Palm Beach County case. The two statutes give employees different protections (minimum wage vs. the right to unionize), are enforced by different entities (Department of Labor vs. NLRB), and have different (but similarly unhelpful) definitions. of employees.

The factors used to determine whether an employment relationship exists are similar for both federal laws, however the contrasts in reasoning between the Dartmouth and Palm Beach County cases indicate that it is possible that some college athletes may be determined to be employees under the NLRA , but not under the FLSA.

If you are confused, join the club. The NCAA, despite their seemingly unlimited resources and enthusiasm for paying attorneys’ fees, has been confused by this issue and managed to misdirect it so badly that there are currently thirteen (yes, really) active lawsuits against them regarding employment and /or the compensation of athletes. . They are so powerless that their best strategy seems to be to lobby for help from the only governing body even more powerless than themselves (the US Congress). Help that no member of Congress has been willing or able to provide to this point, not even Tommy Tuberville who introduced a federal NIL bill last summer that did not include an antitrust exemption. Long before he was Senator Tuberville, he was Coach Tuberville and made a small fortune off the NCAA’s amateurism model. If he won’t save her, no one will.

So what does a landscape look like where some college athletes are employees under the NLRA but not under the FLSA? There are many variables to consider. While such a situation exists nowhere else, the NCAA has always argued, if not insisted, that schools’ relationships with their athletes are unique and therefore deserve unique legal treatment. Employee status under the NLRA would allow athletes at private schools to unionize and engage in collective bargaining. It would also oblige the school (as employer) to enter into collective agreements with the unions, in good faith, regarding their wages, hours and working conditions. Without the protections/obligations of the FLSA, athletes and schools may come to an agreement that pays the athlete below minimum wage (or even no wage at all).

Sure it would be weird, but not all bad. This would alleviate many concerns about the financial feasibility of employing college athletes and would still give athletes some negotiating leverage regarding their non-economic interests such as practice schedules, disciplinary procedures and vacation breaks.

Such a scenario seems unlikely, but not entirely implausible. What is likely is that college sports fans and labor law nerds are in for a long and interesting ride before the issue is finally resolved. Issues surrounding the potential House v. The NCAA placements are just the beginning. Prepare your popcorn.