A collective action filed out in the Southern District of Indiana in October of this year seeks to recoup unpaid wages on behalf of NCAA college athletes, claiming that student athletes are “employees” under the Fair Labor Standard Act and entitled to at least the minimum wage. A former women’s soccer player at the University of Houston filed the suit, naming the NCAA and all Division I schools as defendants. 

The former forward’s suit is only the latest shot aimed at NCAA rules preventing college athletes from receiving pay for their play on the field. The National Labor Relations Board is currently reviewing the much-discussed decision by an NLRB Regional Director last Spring deeming Northwestern football players “employees” under the National Labor Relations Act and holding that the athletes must be permitted to organize. The NCAA is also playing defense on the antitrust front, where it is currently appealing a ruling in a California court last August, which blocked the NCAA from enforcing its rules preventing college athletes from being paid for use of their names and likenesses.

In the newly filed FLSA suit, the plaintiff seeks to represent a sprawling class consisting of “all NCAA Division I student athletes participating in women’s and men’s sports” for the past three years, arguing that each of these schools is subject to the same NCAA bylaws that prohibit payment to college athletes. The plaintiff argues that student athletes should be compensated as temporary employees for their work on the field just as students who participate in other work study programs. The plaintiff asserts that student athletes put in long hours—between 30 and 40 hours per week, depending on the sport—and confer substantial benefits on the NCAA and member schools without receiving any wages for their efforts. The plaintiff points out that universities pay the students who usher and sell concessions at the games, but not the athletes who make the games possible.

The plaintiff’s arguments, however, may not go far. Setting aside several significant procedural hurdles likely to be thrown her way, and the merits of her claim generally, plaintiff’s claims against state public universities likely are dead on arrival. The Eleventh Amendment of the Constitution recognizes the sovereign immunity of states and provides that individuals cannot bring suit against states in federal court. States (and thus state schools) cannot be sued by individuals under the FLSA unless immunity is waived. Plaintiff should have no FLSA claim against any state university whose state has not waived Eleventh Amendment immunity. Private universities, however, do not have that protection.

Regardless, the suit is likely to raise questions of joint employer liability and should be watched closely. It reflects the broader continuing trend of challenges to work study and unpaid internship programs, as well as issues with scholarship athletes. Higher educational employers should carefully review any internship programs, training programs, scholarship programs or other programs wherein the institution receives services which may considered to be of value to the institution from individuals who are not paid.