Dawson v. Nat'l Collegiate Athletic Ass'n
Decision Date | 25 April 2017 |
Docket Number | Case No. 16-cv-05487-RS. |
Citation | 250 F.Supp.3d 401 |
Parties | Lamar DAWSON, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Defendants. |
Court | U.S. District Court — Northern District of California |
Betsy Carol Manifold, Brittany Nicole DeJong, Marisa C. Livesay, Rachele R. Rickert, Wolf Haldenstein Adler Freeman and Herz LLP, San Diego, CA, Jeffrey G. Smith, Mark Carl Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY, Jerry K. Cimmet, Jerry K. Cimmet, Attorney at Law, San Mateo, CA, John M. Kelson, Law Office of John M. Kelson, Oakland, CA, for Plaintiff.
Kenneth Dawson Sulzer, Sarah Kroll–Rosenbaum, Steven Bernard Katz, Constangy, Brooks, Smith & Prophete, LLP, Los Angeles, CA, Diana Tabacopoulos, Jeffrey Arn Berman, Kiran Aftab Seldon, Seyfarth Shaw LLP, Los Angeles, CA, for Defendants.
ORDER GRANTING MOTION TO DISMISS
Plaintiff Lamar Dawson, a former college football player for the University of Southern California ("USC"), brings this putative class action lawsuit against the National Collegiate Athletic Association ("NCAA") and the PAC–12 Conference ("PAC–12") for violations of the Fair Labor Standards Act ("FLSA") and the California Labor Code. Defendants move to dismiss on the grounds that student athletes are not covered under either statute and Dawson lacks standing to sue. Defendants rely heavily on the Seventh Circuit's opinion in Berger v. Nat'l Collegiate Athletic Ass'n , 843 F.3d 285 (7th Cir. 2016), which held, as a matter of law, that former student athletes of NCAA Division I schools are not "employees" under the FLSA. While the Berger decision, as out of circuit authority, is not binding and the parties dispute its applicability, its reasoning is persuasive and defendants' motion will be granted.
From 2011 to 2015, Dawson played football for the University of Southern California, a Division I Football Bowl Subdivision (FBS) member of the PAC–12. He alleges that, in that capacity, he was denied full pay for all hours worked, including overtime pay, and was frequently permitted to work without receiving required minimum wage payments. He further alleges that the rules governing student athletes who play football for the NCAA and PAC–12 member schools are set in the first instance by the NCAA, and then adopted by PAC–12. On this basis, he claims that NCAA and PAC–12 are joint employers of student athletes who play Division I FBS football on behalf of member schools. He brings claims against the NCAA and PAC–12 for violations of the FLSA and the California Labor Code, as well as derivative claims under California's Private Attorneys General Act ("PAGA") and Unfair Competition Law ("UCL"). He brings suit on behalf of a "FLSA Class," which appears to include any Division I FBS football player in the United States, and a "California Class," which appears to include student athletes in football programs at NCAA member schools in California, as well as several California sub-classes based on specific Labor Code violations.2
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While "detailed factual allegations" are not required, a complaint must have sufficient factual allegations to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard asks for "more than a sheer possibility that a defendant acted unlawfully." Id. The determination is a context-specific task requiring the court "to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.
A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington , 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may be based either on the "lack of a cognizable legal theory" or on "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). When evaluating such a motion, the court must accept all material allegations in the complaint as true, even if doubtful, and construe them in the light most favorable to the non-moving party. Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co. , 83 F.3d 1136, 1140 (9th Cir. 1996) ; see also Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ( ).
To start, defendants argue that Dawson lacks standing to sue. Dawson has the burden of establishing that "(1) [he] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Under the FLSA, alleged employees' "injuries are only traceable to, and redressable by, those who employed them." Berger , 843 F.3d at 289 (citing Roman v. Guapos III, Inc. , 970 F.Supp.2d 407, 412 (D. Md. 2013) ). Accordingly, in cases like this one, courts have reasoned that "the question of a plaintiff's standing turns on whether she has sufficiently alleged that she was ‘employed’ by defendants, as that concept is interpreted in the context of the FLSA." Cavallaro v. UMass Mem'l Health Care, Inc. , 971 F.Supp.2d 139, 146 (D. Mass. 2013) ; see also Crumbling v. Miyabi Murrells Inlet, LLC , 192 F.Supp.3d 640, 644 (D.S.C. 2016) (); Sandoval v. Ali , 34 F.Supp.3d 1031, 1039 (N.D. Cal. 2014) (same). At the hearing, the parties agreed that the standing inquiry converges with the substantive FLSA employer inquiry.
In Berger , however, the Seventh Circuit treated the inquiries as distinct. It held student athletes had standing to sue their university despite ultimately concluding the students were not "employees" under FLSA. Irrespective of the FLSA employer analysis, the court found plaintiffs plausibly alleged injury traceable to the university, but not the NCAA because joint employment was not mentioned in the complaint. See id. , 843 F.3d at 289. Here, in contrast, Dawson has alleged NCAA and PAC–12 are joint employers of the student athletes. See Comp. ¶¶ 48–50.
As a general matter, it is uncontested that liability in the FLSA context is predicated on the existence of an employer-employee relationship. It seems to follow, thus, that Dawson's injuries are only traceable to, and redressable by, those defendants who are deemed by law to have employed him—an inquiry which is addressed in the next section. In light of the uncertainty introduced by Berger , however, discussion of the merits of defendants' motion to dismiss is warranted.
Defendants argue that Dawson is not their "employee" under the FLSA. The FLSA defines "employee" as "any individual employed by an employer" and "employ" as including "to suffer or permit to work." 29 U.S.C. §§ 203(g), (e). While the Supreme Court has instructed courts to construe the terms "employee" and "employer" expansively, it has also held that the definition of "employee" "does have its limits." Tony & Susan Alamo Found. v. Sec'y of Labor , 471 U.S. 290, 295, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). As a general rule, whether there is an employment relationship under the FLSA is tested by " ‘economic reality’ rather than ‘technical concepts.’ " Goldberg v. Whitaker House Cooperative, Inc. , 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961). To guide this inquiry, courts have developed a variety of multifactor tests. The Ninth Circuit has a four-factor test, which asks "whether the employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Bonnette v. Cal. Health & Welfare Agency , 704 F.2d 1465 (9th Cir. 1983). That test, however, is not "etched in stone and will not be blindly applied." Id. at 1470. The "ultimate determination" of employer status must be based upon "the circumstances of the whole activity." Id.
The Ninth Circuit has made clear that multifactor tests are not always a useful framework for assessing the circumstances of an alleged employment relationship. See Hale v. State of Ariz. , 993 F.2d 1387, 1394 (9th Cir. 1993). As explained in Hale :
The Bonnette factors, with their emphasis on control over the terms and structure of the employment relationship, are particularly appropriate where (as in Bonnette itself) it is clear that some entity is an "employer" and the question is which one. The dispute in this case is a more fundamental one: Can these [plaintiffs] plausibly be said to be "employed" in the relevant sense at all?
Id. (citing Vanskike v. Peters , 974 F.2d 806, 809 (7th Cir. 1992) ). Here, while it is not clear that either the NCAA or PAC–12 is an "employer," a...
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