In a federal lawsuit filed against the National Collegiate Athletic Association, plaintiffs requested conditional certification of all student-athletes who had played for NCAA Division I schools since April 2017, along with sub-groups of students who had played at 15 other colleges and universities. More than 200,000 college student-athletes could opt-in if this request for the first stage of certification and notice is approved by the court.

Conditional certification would allow the plaintiffs to proceed with offering current and former student-athletes the option to opt-in to the plaintiffs’ suit, which contains allegations of the NCAA violating the Fair Labor Standards Act by prohibiting most forms of compensation for student-athletes. Approximately 176,000 student-athletes participate in NCAA Division I sports each year but are paid nothing by their respective colleges and universities, not even the minimum wages provided for and required under the FLSA.

Other athletes soon joined the lawsuit, encouraged by the Supreme Court’s ruling in National Collegiate Athletic Association v. Alston et al., that struck down some of the NCAA’s limitations on certain benefits for student-athletes. Also, a September memo from the National Labor Relations Board’s General Counsel stated outright that NCAA athletes at private universities were employees under federal labor law.

The request for conditional certification alleges that all the potential opt-in members had been subject to the same rules and lack of pay and were thus similarly situated to an extent sufficient for the first stage of certification.

A brief filed in support of the plaintiffs’ request for certification stated:

“Here, it is undisputed that the NCAA’s bylaws, including bylaws prohibiting student-athletes from receiving pay, apply to all athletes in NCAA DI sports on an equal basis, and that all athletes are similarly situated.” “Importantly, neither the NCAA nor the DI member school defendants dispute that they promulgate and carry out a common policy and practice prohibiting the payment of wages, much less the minimum wage, to student-athletes.”

“Plaintiffs can meet the ‘modest factual showing’ necessary to send a notice to the putative FLSA collectives to effectuate the broad remedial measures of the law. Allowing plaintiffs to do so at this stage would be the only way to provide potential members of the FLSA collectives an opportunity to address their daily loss of wages that have been unlawfully denied to them by defendants and are otherwise diminishing each day that they are not made aware of this lawsuit and do not join this action.”

“The proper inquiry is whether plaintiffs and potential opt-in plaintiffs are similarly situated with respect to the allegations that the law has been violated, and not whether plaintiffs’ job responsibilities are identical in every respect, or whether they worked at the same location,” the brief said. “It is axiomatic that similarly situated employees jointly employed by the NCAA can be a part of a collective against the NCAA even if they worked for the non-attended schools.”

Several schools tried to dismiss the suit in August, but they were unsuccessful. The schools that the plaintiffs had not attended were, in fact, dismissed from the suit in September. The schools remaining in the lawsuit – Cornell University, Fordham University, Lafayette College, Sacred Heart University, and Villanova University – were seeking an immediate appeal of the denial of their motions to dismiss to the Third Circuit, but no decision has yet been made on whether to certify the case for an interlocutory appeal.

The plaintiffs’ motion also requested that the court compel the NCAA and its member schools to expeditiously disclose the contact information of the thousands of potential collective members for notification.

“We look forward to the court’s consideration of our motion, as minimum wage for student-athletes is long overdue,” said Michael Wilemin of Wigdor LLP, one of the attorneys representing the student-athletes.