Lawsuit makes another attempt at wages for all college athletes

A former Villanova football player is suing the NCAA, claiming that college athletes should be viewed as employees and paid like other students who participate in work-study programs on campus.

Trey Johnson filed the class-action lawsuit Wednesday in the Eastern District of Pennsylvania federal court. Along with the NCAA, 22 Division I universities are listed as defendants. Johnson, who currently plays in the Canadian Football League, is asking for what amounts to unpaid wages for his time spent on the Villanova football team.

"Our case says everyone deserves to be paid in every sport," said Paul McDonald, one of the attorneys representing Johnson in the case along with Michael Willemin from the law firm of Wigdor LLP. "[The NCAA] could do this starting next fall if they put their mind to it. You would just fold student-athletes into the same system as other work-study students."

Johnson's suit is the latest addition to an ongoing barrage of challenges to the NCAA's long-held practice of not allowing college athletes to make money. The NCAA's board of governors announced last week that it planned to modify its rules restricting athletes from accepting any type of endorsement money. That announcement came on the heels of a passed law in California that will make it illegal for colleges in that state to prohibit endorsement deals for their athletes starting in 2023. NCAA leaders are attempting to fend off pressure from federal and state lawmakers while also defending their organization against civil lawsuits that claim that current NCAA rules violate antitrust laws.

Johnson argues that each athlete is an employee of the school and deserves to be paid an hourly wage that is comparable to peers who stock books at the library or sell concessions and tickets at campus sporting events. His attorneys estimate that would mean roughly $10 to $15 per hour for each student.

McDonald said he believes that if the NCAA shows some willingness to treat athletes like work-study students that it would have better luck getting the government to grant an antitrust exemption to help avoid some of the "thornier" labor issues looming on the horizon.

This suit marks the third time McDonald has attempted to force colleges to treat athletes like work-study students. The U.S. Court of Appeals for the Seventh Circuit ended his first shot in 2016 when it upheld a ruling that a group of former Penn track runners were not employees of the school.

"This complaint is filed by lawyers who have already sued unsuccessfully on this subject," NCAA chief legal officer Donald Remy said. "Importantly, it ignores previous court rulings that student-athletes are not university employees. The NCAA remains confident that courts will continue to uphold the precedent set by prior decisions."

In most cases regarding the Fair Labor Standards Act, the court will run the claim through one of two standard tests to determine if the plaintiff should be considered an employee and is entitled to minimum wage. In the Penn track runners case -- Berger v. NCAA --the court decided no test was necessary after the NCAA successfully argued it should be granted an exception because of its tradition of amateurism. According to McDonald, the NCAA argued for its exception by using a case in which prisoners in Illinois sued in an attempt to be paid for the work they did while incarcerated.

A judge in California used the same reasoning to dismiss a case filed by former USC football player Lamar Dawson in 2017.

McDonald was not involved in Dawson's lawsuit, but he made another attempt at the same argument in 2017 with former Villanova football player Poppy Livers.

In that case, a judge decided that the NCAA should not be exempt from an employment test, but Livers backed away from the suit because of questions about whether his case was still within the statute of limitations. Livers eventually led McDonald to Johnson and the class-action suit that was filed this week.

McDonald said he was confident that the judge in this case will at least allow for the employment test, which amounts to a series of questions that seek to define the relationship between the athlete and his or her school. He said he believes Johnson and any others who join the lawsuit will be able to make a strong case that they should considered as employees.

"If you go through each criteria and compare them to work-study students that have already passed those tests as employees, student-athletes are even more of an employee," McDonald said.