College Athletes & FSLA: Judge, Lost in Fog of Amateurism, Crawls Down Woodchuck Hole with NLRB

An Indiana federal judge tossed the novel class action originally filed on behalf of a University of Houston scholarship athlete against more than 100 NCAA schools, which had asserted that the time demands placed upon those athletes violated the Fair Labor Standards Act. The judge had also tossed the plaintiffs’ claims that NCAA rules applied to all NCAA D-1 schools, leaving only Penn as a defendant. That really hurt the plaintiffs, since Penn, as a member of the Ivy League, does not provide athletic scholarships.

But it also didn’t help that the federal judge crawled into the same woodchuck hole which the NLRB scurried into when it ruled last year that it could not hear the Northwestern football player’s NLRB certification case. Lost in the fog of amateurism which — because there remains no logic, or even moral or pragmatic principle behind it — intimidates and confuses any judge who attempts to penetrate it — the NLRB and this federal judge have now both been reduced to muttering that, “it’s always been done this way,” and scurrying back below ground. The cowering court also kissed the feet of the Department of Labor, asserting that “the existence of thousands of unpaid college athletes on college campuses each year is not a secret, and the Department of Labor has not taken any action to apply the FLSA to them.” (The judge has things backward: Federal courts are supposed to tell administrative agencies how to interpret the law — not the other way around.)

So the athletes are not ’employees’ under the FLSA, and they will not receive minimum wage pursuant to that statute. Another judge, overwhelmed by the fog of amateurism.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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