Livers v. Nat'l Collegiate Athletic Ass'n, CIVIL ACTION NO. 17-4271

• Decision Date: 17 May 2018
• Docket Number: CIVIL ACTION NO. 17-4271
• Parties: LAWRENCE "POPPY" LIVERS, on his own behalf and on behalf of similarly situated persons v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, a/k/a the NCAA, and the following NCAA Division I Member Schoolsi as representatives of a Defendant Class of all private and semi-public member schools that entered/enter into Athletic Financial Aid Agreements with the Plaintiff Collective: BUCKNELL UNIVERSITY, DREXEL UNIVERSITY, DUQUESNE UNIVERSITY, FAIRLEIGH DICKINSON UNIVERSITY, LA SALLE UNIVERSITY, LAFAYETTE COLLEGE, LEHIGH UNIVERSITY, MONMOUTH UNIVERSITY, RIDER UNIVERSITY, ROBERT MORRIS UNIVERSITY, SETON HALL UNIVERSITY, SAINT FRANCIS UNIVERSITY, SAINT JOSEPH'S UNIVERSITY, ST. PETER'S UNIVERSITY, VILLANOVA UNIVERSITY UNIVERSITY OF DELAWARE PENNSYLVANIA STATE UNIVERSITY UNIVERSITY OF PITTSBURGH RUTGERS, STATE UNIVERSITY OF NEW JERSEY TEMPLE UNIVERSITY
• Court: U.S. District Court — Eastern District of Pennsylvania

LAWRENCE "POPPY" LIVERS, on his own behalfand on behalf of similarly situated persons v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, a/k/a the NCAA,and the following NCAA Division I Member Schoolsi as representatives ofa Defendant Class of all private and semi-public member schoolsthat entered/enter into Athletic Financial Aid Agreements with the Plaintiff Collective:BUCKNELL UNIVERSITY, DREXEL UNIVERSITY, DUQUESNE UNIVERSITY,FAIRLEIGH DICKINSON UNIVERSITY, LA SALLE UNIVERSITY,LAFAYETTE COLLEGE, LEHIGH UNIVERSITY, MONMOUTH UNIVERSITY,RIDER UNIVERSITY, ROBERT MORRIS UNIVERSITY, SETON HALL UNIVERSITY,SAINT FRANCIS UNIVERSITY, SAINT JOSEPH'S UNIVERSITY,ST. PETER'S UNIVERSITY, VILLANOVA UNIVERSITY UNIVERSITY OF DELAWAREPENNSYLVANIA STATE UNIVERSITY UNIVERSITY OF PITTSBURGHRUTGERS, STATE UNIVERSITY OF NEW JERSEY TEMPLE UNIVERSITY

CIVIL ACTION NO. 17-4271

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

May 17, 2018

Baylson, J.

MEMORANDUM RE: MOTION TO DISMISS

Plaintiff "Poppy" Livers seeks damages under the Fair Labor Standards Act ("FLSA"), arising out of his highly-publicized career as a football star while a student at Villanova University. Ultimately, do the facts allow a conclusion that he was an "employee?" Looking at literature, both old and new, and of course, opera, it can sometimes be easy but other times difficult, to determine who exactly is, or is not, an employee. Shakespeare shows respect for the power of royalty over commoners, as seen in plays such as King Lear and Othello. But, there can be questions about employment status, as to the gravediggers in Hamlet, metaphors for laborers, as to who employed them? In Dickens' world, Scrooge was a mean boss and Bob Cratchit was clearly his abused employee (who undoubtedly would have benefitted from FLSA protections). Turning to espionage, the identity of the employer is often ambiguous. One question frequently asked about characters in LeCarre novels is, "Who are you working for?" - the elusive answer may not be solved until the final page and provides ongoing suspense. Turning to opera, Mozart also respected the privileges of royalty, but with cynicism. In The Marriage of Figaro, there is no doubt that the Count is completely in charge; his employees have few rights and may not have been paid any wages at all. In Cosi Fan Tutte, on the other hand, Mozart, as the musician of the Enlightenment, portrays the maid Despina as constantly outsmarting her employers, Dorabella and Fiordiligi. But, when we consider Wagner, questions can arise. Were Fasolt and Fafner, who contracted with Wotan to build Valhalla, employees or independent contractors? Or were they working for all of the "gods," on a "joint employment basis." Although truth is paramount, at the moment we deal only with allegations. As Plaintiff alleges in exceedingly, and sometimes excessively, detailed paragraphs (174), he requests this Court to endorse a "joint employment theory," as to all of the Defendants.

Plaintiff Livers alleges that Defendant National Collegiate Athletic Association ("NCAA"), Villanova University, and dozens of other NCAA member schools, violated his right to be paid as an employee of the Defendants, acting jointly, for his participation on the Villanovafootball team as a Scholarship Athlete. Plaintiff seeks to represent a putative class of individuals termed the "Scholarship Athlete Collective," comprised of all recipients of athletic scholarships under Athletic Financial Aid Agreements that require participation in NCAA athletics at NCAA Division I member schools. Plaintiff asserts a single claim under the Minimum Wage provisions of the Fair Labor Standards Act ("FLSA") against all Defendants.

Presently before the Court are two separate Motions to Dismiss the Complaint for failure to state a claim for which relief can be granted and for lack of standing. One Motion was filed by the NCAA and several member schools, including Villanova University. The other Motion was filed by the other NCAA member schools. The Court does not know why Defendants filed Motions to Dismiss separately. For the reasons discussed below, Defendants' motions are granted in full, with prejudice as to the schools that Plaintiff did not attend, without prejudice and with leave to re-plead as to the NCAA and Villanova University.

I. Summary of Allegations

A. Background

Plaintiff Lawrence "Poppy" Livers is an adult who lives in Montgomery County, Pennsylvania. (ECF 1, Complaint ¶ 19.) Plaintiff Livers was a Scholarship Athlete on the Villanova University Football roster during the academic year 2014-15, engaging in at least twenty hours per week during playing and practice season of activity supervised by NCAA athletics supervisory staff. (Id. ¶ 177.) His work as a Scholarship Athlete was non-academic in nature and unrelated and irrelevant to an academic degree program, and he received no academic credit for it. (Id. ¶ 178.)

The NCAA employs a legislative process to establish bylaws to govern member schools. (Id. ¶ 28.) NCAA bylaws subject all Scholarship Athletes to uniform policies and practices which prohibit the classification of athletes as employees entitled to minimum wage compensation, and which include uniform policies regarding the recruitment of athletes, eligibility of athletes to participate, hours and duration of athletes' participation, and discipline. (Id. ¶ 29.)

B. Academic and Athletic Scholarships Are Not Compensation

Academic and athletic scholarships are both grants-in-aid designed to assist academically eligible students in defraying costs of attendance. (Id. ¶ 46.) Academic and athletic scholarships, as compared with some other forms of scholarships, are not taxable income as applied to qualified education expenses required for enrollment and attendance. (Id. ¶¶ 47-48.) An academic scholarship is not compensation to prepare for and/or participate in class, and an athletic scholarship is not compensation to prepare for and/or participate in NCAA athletics. (Id. ¶¶ 49-50.)

C. Comparison of Scholarship Athletes with Academic Scholarship Recipients

Both athletic and academic scholarships require recipients to maintain academic standards for scholarship eligibility. (Id. ¶ 51.) Athletic scholarships impose additional obligations and limitations on recipients as compared with academic scholarships. (Id. ¶ 52.) Specifically, athletic scholarships obligate recipients to participate in NCAA athletics as directed and controlled by coaching and training staff, athletics department personnel, and NCAA compliance officers. (Id. ¶ 53.) This participation requirement interferes with, rather than facilitates, academic studies. (Id. ¶ 54.)

NCAA Division I Constitution Article 2.14 states: "time required of student athletes for participation in intercollegiate athletics [must] be regulated to minimize interference with their opportunities for acquiring a quality education in a manner consistent with that afforded the general student body." (Id. ¶ 55.) NCAA bylaws seek to achieve minimized interference in the following ways: (i) limiting class time missed; (ii) limiting hours of athletic activities supervised by coaching staff to twenty hours per week in playing and practice season and eight hours per week in off-season; and (iii) requiring NCAA athletics supervisory staff to record the hours of athletic participation on timesheets the same as work study supervisors are required to record the hours of student employment. See, NCAA Division I Bylaws 17.1.7.1; 17.1.7.2; 17.1.7.3.4; 17.1.7.9.1; and 17.1.7.9.2. (Compl. ¶ 56.)

The NCAA Growth, Opportunities, Aspirations and Learning of Students (GOALS) Study (2015) suggests that NCAA regulations that attempt to minimize interference by athletic participation with academic studies is ineffectual and/or for appearances. (Compl. ¶ 57.) Between 25-36% of student athletes (depending upon the sport) reported that athletic participation prevented them from pursuing their preferred major; between 34-53% reported that participation prevented them from taking classes they wanted to take; and between 38-45% reported that they felt less than positive about their ability to keep up with classes in season. (Id.)

If injury or illness prevents a Scholarship Athlete from participating in NCAA athletics, the Athletic Financial Aid Agreement obligates the student to "assist the athletics department in other operational activities (i.e., coaching and/or support staff duties)" as directed and controlled by NCAA supervisory staff. (Id. ¶ 63.)

Athletic scholarships are not guaranteed for the entirety of a Scholarship Athletes' college attendance; rather athletic scholarships are "given initially for up to one year" and "can be renewed, reduced, increased or canceled from year to year for almost any reason" by NCAA athletics supervisory staff. See, http://fs.ncaa.org/Docs/eligibility_center/Athletics_Information/FinancialAid.pdf; also http://www.ncaa.org/student-athletes/future/scholarships. (Compl. ¶ 74.)

Several additional bases exist for cancelling or reducing an athletic scholarship, including when the Scholarship Athlete "renders himself/herself ineligible for intercollegiate competition" by breaking or being suspected of breaking an NCAA rule; engages in "manifest disobedience"; "fails to attend...meetings...and participate in athletic practice sessions and scheduled contests"; "does not comply with expected personal conduct, appearance and dress, both on and off the University campus...when such violations bring discredit to the athletic program"; or "fails to adhere to training rules and regulations." See NCAA Division I Bylaws 15.3.4.2 and 15.3.5.1. (Compl. ¶ 77.)

By contrast, most academic scholarships are allotted by academic classifications, that is, a recipient retains the scholarship through graduation as long as she/he continues to maintain academic eligibility standards. (Compl. ¶ 75.) Academic and athletic scholarships both may be cancelled...