Johnson v. Nat'l Collegiate Athletic Ass'n

• Decision Date: 28 December 2021
• Docket Number: Civil Action 19-5230
• Parties: RALPH “TREY” JOHNSON, ET AL., individually and on behalf of all persons similarly situated v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.
• Court: U.S. District Court — Eastern District of Pennsylvania

RALPH “TREY” JOHNSON, ET AL., individually and on behalf of all persons similarly situated
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.

Civil Action No. 19-5230

United States District Court, E.D. Pennsylvania

December 28, 2021

ORDER-MEMORANDUM

JOHN R. PADOVA, J.

AND NOW, this 22nd day of December, 2021, upon consideration of the “Corrected Notice of Motion and Motion of the Attended Schools to Certify Interlocutory Appeal of Ruling Denying Their Motion to Dismiss (ECF 55-56)” (Docket No. 69), all documents filed in connection therewith, and the Hearing held on November 4, 2021, IT IS HEREBY ORDERED that the Motion is GRANTED, and the following issue IS HEREBY CERTIFIED for interlocutory appeal:

Whether NCAA Division I student athletes can be employees of the colleges and universities they attend for purposes of the Fair Labor Standards Act solely by virtue of their participation in interscholastic athletics

I. BACKGROUND

The First Amended Complaint (“Complaint”)^[1] alleges that student athletes who attend colleges and universities in Division I of the National Collegiate Athletic Association (NCAA) and who engage in Division I interscholastic athletic activity for those colleges and universities

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that is unrelated to academics are student employees similar to students engaged in work study programs and should be paid for the time they spend in NCAA Division I interscholastic athletics as if they were work study students. The Complaint asserts claims for violation of the Fair Labor Standards Act (“FLSA”), the Pennsylvania Minimum Wage Act, 43 Pa. Stat. § 333.101, et seq. (the “PMWA”), the New York Labor Law, N.Y. Lab. Law § 191, et seq. (“NYLL”), and the Connecticut Minimum Wage Act, C.G.S.A. §§ 31-58, et seq. (“CMWA”). (Compl. Counts I-II, IV-V, VII.) The Complaint also asserts claims for unjust enrichment under Pennsylvania, New York, and Connecticut common law against all Defendants. (Id. Counts III, VI, VIII.) The Complaint seeks the approval of an FLSA collective and classes to pursue the Pennsylvania, New York, and Connecticut law claims.

On August 25, 2021, we denied the Attended Schools Defendants' (“ASD”) Motion to Dismiss. The ASD moved to dismiss Plaintiffs' FLSA and state statutory law claims^[2] as against them on the ground that the Complaint does not allege facts that would establish that Plaintiffs are their employees, which is a requirement for bringing a claim under the FLSA and the relevant state statutes See Johnson v. The Nat'l Collegiate Athletic Assoc., F.Supp.3d, Civ. A. No. 195230, 2021 WL 3771810, at *5 (E.D. Pa. Aug. 25 2021) (citing Razak v. Uber Techs. Inc., 951 F.3d 137, 143 (3d Cir. 2020), cert. denied, 141 S.Ct. 2629 (2021)). The ASD argued that Plaintiffs could not be their employees for three reasons: (1) student athletes such as Plaintiffs are amateurs; (2) the Department of Labor has determined that interscholastic athletes are not employees for purposes of the FLSA; and (3) the Complaint does not plausibly allege that Plaintiffs are employees pursuant to a multi-factor test used to determine whether individuals are employees.

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We denied the Motion to Dismiss as to all three of these arguments. The ASD now ask us to certify the issue described above for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).^[3]

II. LEGAL STANDARD

“Generally, an order denying a dispositive motion is not immediately appealable because it is not a final judgment.” Fair Hous. Rts. Ctr. in Se. Pa. v. Morgan Props. Mgmt. Co., LLC, Civ. A. No. 16-4677, 2018 WL 4489653, at *2 (E.D. Pa. Sept. 19, 2018) (citing In re Chocolate Confectionary Antitrust Litig., 607 F.Supp.2d 701, 704 (M.D. Pa. 2009)). “However, district courts may certify a non-final order for interlocutory appeal under 28 U.S.C. § 1292(b).” Id. (citing In re Chocolate Confectionary, 607 F.Supp.2d at 704). “To certify a non-final order for interlocutory appeal, ‘[t]he order must (1) involve a controlling question of law, (2) offer substantial ground for difference of opinion as to its correctness, and (3) if appealed immediately, materially advance the ultimate termination of the litigation.'” Id. (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (en banc)); see also 28 U.S.C. § 1292(b); J.B. ex rel. Benjamin v. Fassnacht, 801 F.3d 336, 339 n.8 (3d Cir. 2015) (quoting Knipe v. SmithKline Beecham, 583 F.Supp.2d 553, 598-99 (E.D. Pa. 2008)). “However, ‘[t]he certification procedure is not mandatory; indeed, permission to appeal is wholly within the discretion of the courts, even if the criteria are present.'” Fair Hous. Rts. Ctr., 2018 WL 4489653, at *2 (quoting Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976)).

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“The decision to certify an order for interlocutory review is only appropriate in ‘exceptional circumstances and we should be mindful of the strong policy against piecemeal appeals when exercising our discretion.'” Id. (quoting U.S. ex rel. Nevyas v. Allergan, Inc., Civ. A. No. 09-432, 2015 WL 4064629, at *2 (E.D. Pa. July 2, 2015)) “‘The Third Circuit has held that certification is to be used in exceptional cases where an immediate appeal would avoid protracted and expensive litigation.'” Id. (quoting Zygmuntowicz v. Hosp. Invs., Inc., 828 F.Supp. 346, 353 (E.D. Pa. 1993)). “‘The party seeking interlocutory review has the burden of persuading the district court that exceptional circumstances exist that justify a departure from the basic policy of postponing appellate review until after the entry of final judgment.'” Id. (quoting Premick v. Dick's Sporting Goods, Inc., Civ. A. No. 06-530, 2007 WL 588992, at *1 (W.D. Pa. Feb. 20, 2007)).

III. DISCUSSION

The ASD argue that certification of the two issues they have identified for interlocutory appeal would satisfy these criteria because (1) our August 25, 2021 Order and accompanying Memorandum present a “controlling question of law” that, if reversed by the Third Circuit would result in dismissal of this case; (2) the Order and Memorandum address questions over which there is “substantial ground for difference of...