and Submitted October 15, 2018 San Francisco, California
from the United States District Court for the Northern
District of California Richard Seeborg, District Judge,
Presiding D.C. No. 3:16-cv-05487-RS
C. Rifkin (argued) and Jeffrey G. Smith, Wolf Haldenstein
Adler Freeman & Hertz LLP, New York, New York; Betsy C.
Manifold, Wolf Haldenstein Adler Freeman & Hertz LLP, San
Diego, California; John M. Kelson, The Law Offices of John M.
Kelson, Oakland, California; Jerry K. Cimmet, San Mateo,
California; for Plaintiff-Appellant.
S. Volchok (argued) and David M. Lehn, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C.; Kenneth D.
Sulzer, Steven B. Katz, and Sarah Kroll-Rosenbaum, Constangy
Brooks Smith & Prophete LLP, Los Angeles, California; for
Defendant-Appellee National Collegiate Athletic Association.
A. Seldon (argued), Jeffrey A. Berman, and Diana
Tabacopoulos, Seyfarth Shaw LLP, Los Angeles, California, for
Defendant-Appellee PAC-12 Conference.
Before: Sidney R. Thomas, Chief Judge, Andrew J. Kleinfeld,
Circuit Judge, and George H. Wu, [*] District
panel affirmed the district court's dismissal of a
Division I college football player's claim that he was an
employee of the National Collegiate Athletic Association and
the PAC-12 Conference within the meaning of the Fair Labor
Standards Act and California labor law and thus entitled to
minimum wage and overtime pay.
panel held that Division I football players were not
employees of the NCAA or PAC-12 as a matter of federal law
because the economic reality of the relationship between the
NCAA/PAC-12 and student-athletes did not reflect an
employment relationship. The panel concluded that NCAA
regulations providing a limitation on scholarships did not
create any expectation of compensation; plaintiff could not
demonstrate that the NCAA or the PAC-12 had the power to fire
or hire him; and there was no evidence that the NCAA rules
were conceived or carried out to evade the law. Further, the
revenue generated by college sports did not convert the
relationship between student-athletes and the NCAA into an
employment relationship. Thus, the NCAA and Pac-12 were
regulatory bodies, not employers of student-athletes under
the Fair Labor Standards Act.
panel also affirmed the district court's dismissal for
failure to state a claim of plaintiff's California law
claims. The panel held that the district court properly
relied on a legislative exception for student-athletes from
workers compensation benefits and the California courts'
interpretation of this exception. The panel held that, under
the California Labor Code, student-athletes were not
employees of the NCAA/PAC-12.
THOMAS, CHIEF JUDGE.
consider whether Lamar Dawson and Division I Football Bowl
Subdivision ("FBS") Football Players are employees
of the National Collegiate Athletic Association
("NCAA") and PAC-12 Conference ("PAC-12")
within the meaning of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 201-219, and
California labor law. We have jurisdiction pursuant to 28
U.S.C. § 1291. Because the claims fail as a matter of
law, we affirm the judgment of the district court.
played football for the University of Southern California
("USC"), a Division I FBS member of the NCAA's
PAC-12 Conference. In this putative class action case, Dawson
does not allege that he was an employee of USC, so the pure
question of employment is not before us, and we need not
consider whether he had employment status as a football
player, nor whether USC was an employer. That question is
left, if at all, for another day. Rather, the only issue
before us is whether the NCAA and PAC-12 were his employers
under federal and state law.
NCAA is an "unincorporated not-for-profit educational
organization" comprised of more than 1, 100 colleges and
universities throughout the United States. NCAA member
schools are organized into three Divisions based on the
number and quality of opportunities that the schools provide
to participate in intercollegiate athletics. Division I
consists of approximately 351 schools. Approximately 253
Division I schools have Division I football programs, of
which approximately 128 fall within the FBS. The PAC-12 is an
unincorporated association which operates a multi-sport
collegiate athletic conference, and is a formal conference
member of the NCAA Division I FBS.
member schools "agree to administer their athletics
programs in accordance with the constitution, bylaws, and
other legislation of the [NCAA]." The NCAA's
constitution and bylaws establish academic eligibility
requirements, provide guidelines and restrictions for
recruitment, impose limits on the number and size of athletic
scholarships, and regulate the scheduling and conditions of
practice and games.
NCAA bylaws also govern financial aid and prohibit
compensation for student-athletes. Bylaw 15.1 provides that
student-athletes may receive financial aid on the basis of
athletic ability, but that the amount of aid must not exceed
"the value of his or her cost of attendance."
Student-athletes receiving aid in excess of the cost of
attendance limitation "shall not be eligible to
participate in intercollegiate athletics."
Bylaw 12.1.4 provides that financial aid is "not
considered to be pay or the promise of pay for athletics
skill." Bylaw 12.1.2 further prohibits any payment to a
student-athlete for athletic services. Student-athletes who
accept payments may be subject to revocation of their amateur
status and eligibility under seven conditions.
complaint, Dawson alleged that the NCAA and the PAC-12 acted
as an employer of the class members by "prescribing the
terms and conditions under which student-athletes perform
services." Dawson claims that the NCAA and PAC-12, as
joint employers, failed to pay wages, including overtime pay,
to Dawson and to class members in violation of federal and
state labor laws.
NCAA and the PAC-12 moved to dismiss Dawson's complaint
for failure to state a claim upon which relief can be
granted. The district court granted the motion, ...