Case 2:17-cv-04271-MMB Document 39 Filed 02/20/18 Page 1 of 18

Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
Telephone: (267) 238-3835
Facsimile: (267) 238-3801
Email: paul@plmcdonaldlaw.com
Counsel for Plaintiff and
the Proposed Collective

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

LAWRENCE “POPPY” LIVERS,

Plaintiff,

v. Civil Action No. 2:17-cv-04271-MMB

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, a/k/a the NCAA, et al.

Defendants.

PLAINTIFF’S REPLY IN SUPPORT OF

MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH RULE 11(b)

Defense Counsel do not directly dispute any of the legal and factual indictments of

their conduct in Plaintiff’s Motion for Sanctions.

Plaintiff Counsel exhaustively cites existing law in the Third Circuit, consistent

authorities in the 11 other geographically-bound Circuits, and authoritative Supreme Court

precedents to support the legal contentions in Plaintiff’s Motion for Sanctions and

Plaintiff’s Opposition to Defendants’ Motions to Dismiss (ECF 28).

Defense Counsel neither dispute, nor contradict, any of these legal authorities, but

rather endeavor to deflect by reference to a handful of cases that are easily distinguishable

factually and/or procedurally, i.e., decided at summary judgment or trial after facts had been

applied to a multi-factor employee test.

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Plaintiff Counsel exhaustively compiled Defendants’ own admissions and policies,

published on their websites, demonstrating that Defendants have never interpreted, or

relied upon, U.S. Department of Labor (“DOL”) Field Operations Handbook (“FOH”)

§10b03(e) to categorize, or treat, NCAA-regulated sports the same as student-run groups, and

student-run interscholastic Club Sports, that ordinarily do not implicate employer-employee

relationships with colleges. See Pl.’s Mot. for Sanctions, Ex. 4; Pl.’s Opp’n to Defs.’ Mots. to

Dismiss, Ex. 3.

Defense Counsel neither dispute, nor contradict, any of Defendants’ admissions and

policies distinguishing NCAA-regulated sports from student-run groups – or, for that matter,

any of the obvious similarities between NCAA-regulated sports and work study students

employed by Defendants as detailed in the Complaint. But, Defense Counsel still maintain

that Defendants “believed” that NCAA-regulated sports are the same as student-run groups

listed in DOL FOH §10b03(e), in spite of irrefutable evidence to the contrary, in a cynical effort

to deflect from the willfulness of Defendants’ conduct and urge this Court to reduce the

statute of limitations under 29 U.S.C. § 255(a) although “whether Defendants acted willfully

is a question of fact that is typically inappropriate for summary judgment, much less at the

motion to dismiss stage.” See Reed v. Friendly’s Ice Cream, LLC, 15-CV-0298, 2016 U.S. Dist.

LEXIS 62197, at *19 (M.D. Pa. May 11, 2016).

Indeed, rather than acquitting themselves of the indictments of their conduct in

Plaintiff’s Motion for Sanctions, Defense Counsel in their perfunctory Oppositions to

Plaintiff’s Motion for Sanctions – and their Replies in Support of Defendants’ Motions to

Dismiss incorporated therein by reference 1 – dig a deeper hole of deceit.

1 See Defs’ Mem. of Law in Opp’n to Pl’s Mot. for Sanctions (ECF 36), at 2 (incorporating
Defendants’ motion and reply papers by reference); Opp’n to Mot. for Sanctions (ECF 38), at 1
(incorporating Defendants’ Moving and Reply papers in support of their Motion to Dismiss by
reference).

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A. Defense Counsel Have Failed to Demonstrate, Let Alone Attempt,

Compliance with Existing Law in the Third Circuit and
Authoritative Supreme Court Precedents

Defense Counsel cite nothing to dispute that existing law in the Third Circuit and

authoritative Supreme Court precedents establish:

• employee status and joint employment under the FLSA are fact-intensive
inquiries, requiring application of discovery to multi-factor employee and
joint employment tests, and, thus, are not ripe for determination on a
motion to dismiss;
• the particular facts and legal reasoning of unpaid prison labor cases –
in which prisoner FLSA claims for employee status are precluded by the
Thirteenth Amendment’s solitary exception for involuntary servitude as
punishment for crime – are not analogous or applicable to FLSA claims
of non-prisoners;
• a defendant cannot preclude FLSA claims, and unilaterally “opt-out” of
FLSA coverage, based on its self-serving characterization of its relationship to
plaintiff because the “economic reality” of that relationship, and plaintiff’s
employee status, are determined by applying discovery to a multi-factor
employee test, see Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290,
105 S. Ct. 1953, 85 L. Ed. 2d 278 (1985); and
• non-regulatory DOL guidelines cannot preclude FLSA claims. See Skidmore v.
Swift & Co., 323 U.S. 134, 139-40, 65 S. Ct. 161 (1944).

In fact, as demonstrated in Plaintiff’s Motion for Sanctions, this existing law in the

Third Circuit regarding fact-intensive inquiries for employee status and joint employment –

and the sole exception to such fact-intensive inquiry in cases of unpaid prison labor, i.e.,

involuntary servitude as punishment for crime under the Thirteenth Amendment –

is consistent across all Circuits except the Seventh Circuit.

Defense Counsel, instead, attempt to muddy the waters by implying “existing law”

encompasses any single reported case and by referencing a handful of cases that are

easily distinguishable procedurally and/or factually.

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1. Mere Citation to Any Single Reported Case Does Not Satisfy Rule 11
Where, As Here, Defense Counsel Have Failed to Show Consistency
with Existing Law in the Relevant Circuit

Defense Counsel contend their reliance on a single case, Berger v. NCAA, 843 F.3d 285

(7th Cir. 2016), and the only case that follows it, Dawson v. NCAA, 250 F.Supp.3d 401

(N.D. Cal. 2017) – outside the Third Circuit, and contradicting existing law in the Third Circuit

and authoritative Supreme Court precedents – somehow satisfies Rule 11.

But, citation to a reported case(s), alone, cannot insulate an attorney from sanction

under Rule 11. Rule 11 obviously contemplates, and applies to, attorneys citing some case(s)

or the Rule would stipulate that only failure to cite any case is sanctionable.

Rule 11(b)(2) obliges attorneys to make an objective, reasoned assessment of the

applicability of a case before relying on it, including the consistency of its reasoning with

existing law in the relevant Circuit. See, e.g., Parrish v. Freight Consolidation Servs., Inc.,

No. 86 C 3013, 1987 U.S. Dist. LEXIS 3632, at *15-16 (N.D. Ill. Apr. 30, 1987) (granting

motion for sanctions where counsel ignored the prevailing standard adopted, and reaffirmed,

by the Circuit, relying instead on a single contrarian case superseded within the Circuit “and

cases from other circuits.”)

2. Defense Counsel’s Assertion That “There Is No ‘Prisoner Exception’

to the FLSA” Is A Blatant Falsehood

Defense Counsel’s assertion that “there is no ‘prisoner exception’ to the FLSA” is a

blatant falsehood.

The language of the Thirteenth Amendment, as interpreted in Vanskike v. Peters,

974 F.2d 806 (7th Cir. 1992), clearly establishes that a prisoner – and only a prisoner –

cannot prove any set of facts, applied to any multi-factor employee test, to establish

employee status under the FLSA because involuntary servitude is permitted as

punishment for crime.

Thus, a motion to dismiss a prisoner’s well-pleaded FLSA complaint should be granted.

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Defense Counsel chide Plaintiff Counsel for “ignoring” Benjamin v. B & H Educ., Inc.,

877 F.3d 1139 (9th Cir. 2017), asserting that Benjamin recognized prison inmates, in Hale v.

Arizona, 993 F.2d 1387 (9th Cir. 1993), and homeless persons in rehabilitation programs, in

Williams v. Strickland, 87 F.3d 1064 (9th Cir. 1996), to be similarly situated under the FLSA.

Thus, Defense Counsel imply, there is no exception permitting only a motion to dismiss a

prisoner’s well-pleaded FLSA complaint, but rather the well-pleaded FLSA complaints of

non-prisoners – such as the homeless rehabilitatees in Williams or cosmetology students in

Benjamin – can also properly be dismissed at this stage.

But, both Benjamin and Williams were decided at summary judgment. Thus, neither

procedurally, let alone substantively, supports Defense Counsel’s argument.

This is a recurring tactic of Defense Counsel – to rely on cases decided either at

summary judgment or trial that undermine, rather than support, the premise of

Defendants’ Motions to Dismiss. See Pl.’s Mot. for Sanctions, at 26 n.16, 30 n.18; also

Pl.’s Reply in Supp. of Mot. for Sanctions, at 10 infra.

Defense Counsel’s repeated failure to disclose the procedural posture of such cases is

sanctionable on grounds that Defense Counsel either (i) did not bother to read these cases,

in entirety as opposed to quotations out of context, or (ii) endeavor to mislead this Court.

3. Defense Counsel’s Scant Citations and Commentary in Efforts to

Deflect from the Fact-Intensive Nature of Employee Status
Are Distinguishable and Ineffectual

From among all reported FLSA cases, across all Circuits, Defense Counsel only cite

a single case that affirmatively states that employee status is not fact-intensive: Berger,

843 F.3d at 294 (“We briefly conclude by addressing Appellants’ argument that employment

status is an inherently fact-intensive inquiry and thus should not be decided at the motion-

to-dismiss stage. We reject this argument.”)

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Defense Counsel attempt to deflect from the fact-intensive nature of employee status,

recognized in all Circuits except for the Seventh Circuit, by reducing the question of

employee status to whether, or not, “expected compensation” falls under the FLSA.

But, as Defense Counsel well know, expectation of compensation is just one factor in

the multi-factor employee tests applied in each of the cases cited in Plaintiff’s Motion for

Sanctions, at 7-11; “‘[n]either the presence nor absence of any particular factor is

dispositive’” in a multi-factor employee test, see Razak v. Uber Techs., Inc., No. 16-573, 2016

U.S. Dist. LEXIS 139668, at *13-14 (E.D. Pa. Oct. 7, 2016) (Baylson, J.); and absence of

compensation, at the outset, does not preclude a finding of employee status under the FLSA.

See, e.g., Tony & Susan Alamo Found.

Indeed, if absence of compensation, alone, were dispositive, then no unpaid person

could ever bring a FLSA claim for minimum wages. Such a result would be illogical.

Defense Counsel attempt to deflect from the fact-intensive nature of joint employment

by citing four cases: Katz v. DNC Servs. Corp., No. 16-5800, 2018 U.S. Dist. LEXIS 17002

(E.D. Pa. Feb. 1, 2018); Richardson v. Bezar, No. 15-0772, 2015 U.S. Dist. LEXIS 135294

(E.D. Pa. Oct. 5, 2015); Garcia v. Nunn, No. 13-6316, 2015 U.S. Dist. LEXIS 127318 (E.D.

Pa. Sep. 23, 2015); and Attanasio v. Cmty. Health Sys., 863 F. Supp. 2d 417 (M.D. Pa. 2012).

These cases are easily distinguishable.

In each, plaintiffs either pleaded that defendants were “entirely self-governing,” see,

e.g., Katz, 2018 U.S. Dist. LEXIS 17002, at *9, thus, undermining shared control, and/or

failed to plead “details as to the mechanics of the defendant’s alleged control,” see, e.g.,

Attanasio, 863 F. Supp. 2d at 424, such that an inference of shared control over terms and

conditions of labor, rather than unilateral discretion over the same, could not be drawn.

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In spite of pleading deficiencies, the only case, among the four, where the court denied

leave to amend was Richardson because plaintiffs “failed to file any response to the Motion

to Dismiss despite being granted an extension of time to do so,” and appeared “not interested

in pursuing this action.” 2015 U.S. Dist. LEXIS 135294, at *6-7.

Here, Plaintiff has done the opposite, and pleaded, in great detail, the mechanics of

NCAA bylaws, by which Defendants mutually agree to shared control, and restrict

unilateral discretion, regarding “essential aspects of the [member] clubs’ labor relations,

including but not limited to the selection, retention, and termination of the players, the

terms of individual player contracts, dispute resolution and player discipline,” and each

Defendant school grants the NCAA “authority over not only its own labor relations but also,

on its behalf, authority over the labor relations of the other member clubs.” See, e.g.,

North American Soccer League v. NLRB, 613 F.2d 1379, 1382 (5th Cir. 1980).

B. Defense Counsel Have Not Made, and Cannot Make,

A Non-Frivolous Argument for A Reversal or Change of Existing Law

From among all reported FLSA cases, across all Circuits, Defense Counsel offer only

two outliers – Berger and Dawson – in which any court has:

• granted a motion to dismiss a non-prisoner’s FLSA claim by relying on

unpaid prison labor cases – in direct contradiction to authoritative precedents
in 11 Circuits holding that only a prisoner’s FLSA claim is precluded by the
Thirteenth Amendment’s solitary exception for involuntary servitude as
punishment for crime;
• granted a motion to dismiss a FLSA claim by rejecting the fact-intensive nature
of employee status and application of discovery to a multi-factor employee test –
in direct contradiction to authoritative precedents in 11 Circuits; and
• granted a motion to dismiss a FLSA claim by conferring claim preclusion on a
defendant’s self-serving characterization of plaintiff’s employee status –
in direct contradiction to Supreme Court precedent.

Defense Counsel have offered no nonfrivolous argument for this Court to join these

two outliers and radically reverse or change law in the Third Circuit.

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Indeed, because Defense Counsel did not “state expressly that he or she is arguing

for a reversal or change of law,” their legal contentions must be warranted by existing law

in the Third Circuit in order to comply with Rule 11(b)(2). See Amboy Bancorporation v.

Jenkins & Gilchrist, Civil Action No. 02-CV-5410, 2007 U.S. Dist. LEXIS 68831, at *8-9

(D.N.J. Sept. 14, 2007).

Defense Counsel attempt to escape the procedural corner they backed themselves

into by chiding Plaintiff Counsel for “ignoring” Mary Ann Pensiero v. Lingle, 847 F.2d 90

(3d Cir. 1988) and Langer v. Monarch Life Ins. Co., 966 F.2d 786 (3d Cir. 1992), which

Defense Counsel contend relieve them of the obligation to “state expressly that he or she

is arguing for a reversal or change of law” subsequently articulated by the District of

New Jersey in the 2007 case Amboy Bancorporation.

But, the case relied upon in Pensiero and Langer – Golden Eagle Distrib. Corp. v.

Burroughs Corp., 801 F.2d 1531 (9th Cir. 1986) – was superseded by the 1993 amendment

to Rule 11. See, e.g., Assoc. Bus. Tel. Sys. Corp. v. Cohn, No. C-93-1570-DLJ, 1994 U.S. Dist.

LEXIS 14746, at *6-8 (N.D. Cal. Oct. 4, 1994); Hanson v. Loparex, Inc., No. 09-1070

(SRN/FLN), 2011 U.S. Dist. LEXIS 117014, at *12-13 (D. Minn. Oct. 11, 2011).

The 1993 amendment to Rule 11 established an objective standard for arguments for

change of law to eliminate the “pure-heart” justification for frivolous arguments. While the

Advisory Committee Notes do not direct courts to require that arguments for change of law be

specifically identified, they do advise that “a contention that is so identified should be

viewed with greater tolerance under the rule.” Fed. R. Civ. P. 11 Advisory Committee Notes.

Given this, it was within the discretion of the District of New Jersey to view absence

of identification of argument for reversal or change of law as it did in Amboy Bancorporation,

to preclude misrepresentation or misimpression of such argument as rooted in existing law,

and it was reasonable for Plaintiff Counsel to rely upon Amboy Bancorporation.

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Indeed, here Defense Counsel have attempted to muddy the waters to give the

misimpression that Berger and Dawson are consistent with existing law rather than radical

departures from it. They ought to be held to the Amboy Bancorporation standard.

C. Defense Counsel’s Assertion That Plaintiff Does Not Dispute

Time-Barring of the Complaint Is A Blatant Falsehood

Defense Counsel’s assertion that Plaintiff does not dispute time-barring of the

Complaint is another blatant falsehood.

Defense Counsel’s entire argument for reducing the statute of limitations under

29 U.S.C. § 255(a) rests on the premise that Defendants interpreted, and relied upon, DOL

FOH §10b03(e) to categorize, and treat, NCAA-regulated sports the same as student-run

groups, and student-run interscholastic Club Sports, that ordinarily do not implicate employer-

employee relationships with colleges. Therefore, Defense Counsel contend, Defendants could

not have acted willfully in mischaracterizing Scholarship Athletes employee status.

But, the Complaint clearly pleads facts that not only demonstrate that Defendants,

by their own admissions and policies published on their websites, have never believed

this disingenuous argument of Defense Counsel, but also demonstrate the obvious similarities

between NCAA-regulated sports and work study students, whom Defendants recognize, and

treat, as employees. Indeed, the Complaint pleads that NCAA-regulated sports are like

work study programs, but on steroids. See, e.g., Pl.’s Opp’n to Defs.’ Mots. to Dismiss, at 1-3,

19-23 and Ex. 4; Compl. ¶¶ 45, 51-101.

Moreover, the employee status of Scholarship Athletes is not some new controversy,

which Defendants could not have anticipated, or reflected upon, these past several years.

To the contrary, for more than a decade, a debate has raged out in the open, and behind

closed doors, among NCAA members in response to serious concerns and questioning about

the exploitation of Scholarship Athletes for the enormous, and exclusive, financial benefit of

the adults who strictly supervise and control them.

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Discovery is sure to further shed disinfecting light regarding Defendants’ awareness

of, and true intent behind, mischaracterization of Scholarship Athlete employee status.

Indeed, examination of Defendants’ awareness and true intent through discovery is

what existing law in the Third Circuit demands to determine whether Defendants’ conduct

warrants a three year statute of limitations under 29 U.S.C. § 255(a). “[W]hether Defendants

acted willfully is a question of fact that is typically inappropriate for summary judgment,

much less at the motion to dismiss stage.” See Reed v. Friendly’s Ice Cream, LLC, 2016 U.S.

Dist. LEXIS 62197, at *19.

It is bad enough that Defense Counsel, in the face of Defendants’ own admissions and

policies contradicting Defense Counsel’s factual premise, persist in pushing an argument that

the Defendants have never believed.

Worse, still, Defense Counsel, again, rely on cases decided at summary judgment or

trial that undermine, rather than support, Defense Counsel’s premise that willfulness

under 29 U.S.C. § 255(a) can properly be determined on a motion to dismiss.

In six cases, Defense Counsel, again, fail to disclose procedural posture: Brock v.

Richland Shoe Co., 799 F.2d 80 (3d Cir. 1986) (summary judgment); Lugo v. Farmer's Pride,

802 F. Supp. 2d 598 (E.D. Pa. 2011) (summary judgment); Parada v. Banco Indus. de Venez.,

753 F.3d 62 (2d Cir. 2014) (summary judgment); Stokes v. BWXT Pantex, L.L.C., 424 F.

App'x 324 (5th Cir. 2011) (bench trial); Reich v. Gateway President, 13 F.3d 685 (3d Cir.

1994) (bench trial); Callahan v. City of Sanger, No. 14-cv-600-BAM, 2015 U.S. Dist. LEXIS

67228 (E.D. Cal. May 22, 2015) (summary judgment).

In rare moments of candor, Defense Counsel do disclose the procedural posture of

two cases: Hanscom v. Carteret Mortg. Corp., Civil Action No. 1:06-CV-2483, 2008 U.S. Dist.

LEXIS 89706 (M.D. Pa. Nov. 5, 2008) (summary judgment); Baugh v. CVS RX Servs., No. 15-

00014-MAK, 2015 U.S. Dist. LEXIS 181552 (E.D. Pa. July 24, 2015) (summary judgment).

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D. Defense Counsel, Again, Concede That Defendants’ Motions to Dismiss

Are Premature by Engaging in Debate Regarding the Outcome of
A Multi-Factor Employee Test Before Discovery

Defense Counsel’s rant regarding Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528

(2d Cir. 2015) further demonstrates their intent to obfuscate at least, mislead at worse.

First, Defense Counsel imply that the multi-factor employee test articulated in Glatt is

some sort of “intern” test that cannot be analogized to, or modified for, different settings.

But, there is no “intern” test under the FLSA, let alone an “intern” classification.

There are only employee tests. In Glatt, the question was not whether plaintiffs were interns –

they were. The question was whether they were employees within the meaning of the FLSA

and, thus, entitled to compensation.

Moreover, Defense Counsel acknowledge that Glatt has been applied outside the

context of interns attempting to land their first job in Corporate America, including

application to students at schools. In Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199

(11th Cir. 2015), cited by Defense Counsel, former nursing students, who had attended a

master’s degree program at the defendant school, alleged they had been employed by the

defendant school during the program and were owed pay. The Eleventh Circuit adopted the

Glatt test, vacated the district court’s grant of summary judgment for defendant school, and

remanded. In Benjamin v. B & H Educ., Inc., cited by Defense Counsel, cosmetology students

alleged they had been employed by defendant schools during their educational program and

were owed pay. The Ninth Circuit adopted the Glatt test while affirming the district court’s

grant of summary judgment for defendant schools.

As Plaintiff Counsel explained in Plaintiff’s Opposition to Defendants’ Motions to

Dismiss, at 2 n.3, “[t]he Glatt primary beneficiary test aims to differentiate academic/

educational experience from compensable work, and it has been applied to students in a

range of school and corporate settings in the Second, Seventh, Ninth and Eleventh Circuits.”

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Second, Defense Counsel chide Plaintiff Counsel for a “description of the Glatt test

[that] is misleading at best.”

But, Defense Counsel acknowledge Glatt proposes a “set of non-exhaustive factors,”

and “no one factor is dispositive and every factor need not point in the same direction,”

such that the Glatt test need not be rigid in articulation or application.

Given this, Plaintiff Counsel’s summary of the Glatt test was plainly fair, including

Glatt factors 2-6:

For example, among its multi-factors, the extent to which

activities: (i) are similar to clinical training offered as part of
academic coursework; (ii) are integrated into academic
coursework and/or receive academic credit; (iii) accommodate, or
interfere with, academic commitments corresponding to an
academic calendar; (iv) provide significant educational benefits;
and (v) are complementary, or essential, to related business
operations.

See Pl.’s Opp’n to Defs.’ Mots. to Dismiss, at 2 n.3. (emphasis supplied) Glatt factor 1 regarding

“expectation of compensation” is not dispositive for reasons already discussed ad nauseam.

Glatt factor 7 clearly is only relevant to Corporate America, and not to any school setting.

The nursing students, in Schumann, no more expected a paid job at the defendant school

upon graduation than the work study students employed by Defendants, here, expect a

paid job with any Defendant upon graduation.

Third, Defense Counsel chide Plaintiff Counsel for not “bother[ing] to actually apply

[the Glatt test] to [the Complaint].”

This is yet another blatant falsehood.

The Complaint clearly pleads facts that demonstrate that the five Glatt factors

articulated by Plaintiff Counsel – Glatt factors 2-6 – weigh in favor of Scholarship Athletes

as employees of Defendants as much as, and arguably more than, work study students

whose employee status the Defendants have never disputed.

As summarized in Plaintiff’s Opposition to Defendants’ Motions to Dismiss, at 2-3:

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The Complaint alleges that in both work study programs and NCAA-regulated
sports:
• student performance outside the classroom is: (i) non-academic in
nature; (ii) unrelated/irrelevant to an academic degree program; (iii) not
for academic credit; and (iv) supposed to be restricted to 20 hours per
week, recorded on timesheets maintained by the supervising staff of
the NCAA member school, to limit interference with academic studies;
• student performance primarily benefits NCAA member schools, and
provides no comparable academic or learning benefit to the student;
and
• NCAA member schools hire supervisory staff for the express and full-
time purpose of controlling and directing student performance, both as
to the result to be achieved and details by which that result is achieved.

See Compl. ¶¶ 88-94.

These characteristics shared by work study programs and NCAA-regulated
sports establish that participants in both are employees under the FLSA.
In fact, the Complaint further alleges that:
• Scholarship Athletes’ participation in NCAA-regulated sports is more
arduous and rigorous, more time-consuming, and more detrimental to
academic studies than student employment in work study jobs, see
Compl. ¶¶ 57-62;
• by contrast to students in work study jobs complementing operational
activities, NCAA member school reliance upon Scholarship Athletes in
the business of sports is near total as it is Scholarship Athletes’
performance that is marketed and sold to consumers as a sports
product, see Compl. ¶¶ 13-15, 18, 102-126;
• revenue generated by NCAA-regulated sports, and benefits from
NCAA-regulated sports exposure and promotion that increase
prospective student applications and help fundraising at member schools,
far exceed any revenue generated by, or benefits related to, work study
programs, see, id.; and
• Scholarship Athletes are subject to far stricter discretionary control of
student performance and conduct by college supervisory staff than any
other students on campus, including academic scholarship recipients,
members of student-run groups, and students in work study. See
Compl. ¶¶ 29-30, 45, 51-101, 146-174.

NCAA-regulated sports are like work study programs, but on steroids.

In fact, by engaging in a debate regarding the ultimate outcome of the Glatt test before

discovery has been applied, Defense Counsel only further undermine the premise, and

demonstrate the prematurity, of Defendants’ Motions to Dismiss.

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E. Defense Counsel’s Insistence That the Unpaid Prison Labor Case

Vanskike v. Peters Be Applied to Scholarship Athletes
Is Legally Frivolous, Deeply Offensive and Sanctionable

In the end, the only case that Defense Counsel have ever offered – here, and in

Berger and Dawson, before2 – granting a motion to dismiss a well-pleaded FLSA complaint,

with prejudice, is Vanskike v. Peters.

Defense Counsel are fully aware that Vanskike only applies to, and precludes the

employment-based claims of, detainees and prisoners engaged in involuntary servitude as

punishment for crime under the Thirteenth Amendment.

Defense Counsel are fully aware that Vanskike has been relied upon 14 times in

existing law in the Third Circuit – all cases involving employment-based claims of

detainees or prisoners. 3 See Defs.’ Mot. to Dismiss (ECF 24), at 6 (citing Tourscher and

Wilkerson); Pl.’s Mot. for Sanctions, Ex. 1, at 3 n.3.

Defense Counsel’s insistence that Vanskike be applied here is not only legally frivolous,

but also deeply offensive to all Scholarship Athletes – and particularly to African-Americans. 4

The Thirteenth Amendment invokes the inhumanity of the slavery that it ended,

as well as the racial disparities of the criminal justice system and prison industrial complex

to which it gave rise as documented in the Oscar-nominated film, “13th” (Netflix 2016).

2 Jackson Lewis was defense counsel in Berger; Constangy was defense counsel in Dawson.
3 See Tourscher v. McCullough, 184 F.3d 236 (3d Cir. 1999); Northrop v. Fed. Bureau of
Prisons, No. 1:CV-08-0746, 2008 U.S. Dist. LEXIS 124931 (M.D. Pa. May 12, 2008); Kounelis v.
Sherrer, 396 F. Supp. 2d 525 (D.N.J. 2005); Wofford v. Lanigan, Civil Action No. 14-5723, 2015 U.S.
Dist. LEXIS 172583 (D.N.J. Dec. 28, 2015); Planker v. Christie, Civil Action No. 13-4464, 2015 U.S.
Dist. LEXIS 6804 (D.N.J. Jan. 20, 2015); Shabazz v. N.J. Comm'r of Dep't of Corr., Civil Action No.
13-4968, 2014 U.S. Dist. LEXIS 68294 (D.N.J. May 19, 2014); Banks v. Roberts, No. 1:06-CV-01232,
2007 U.S. Dist. LEXIS 39658 (M.D. Pa. May 31, 2007); Wilkerson v. Samuels, 524 F. App'x 776 (3d
Cir. 2013); Carey v. Johnson, Civil Action No. 06 - 1578, 2008 U.S. Dist. LEXIS 124933 (W.D. Pa.
Feb. 19, 2008); Urbanski v. Horn, CIVIL ACTION NO. 97-4647, 1998 U.S. Dist. LEXIS 15031 (E.D.
Pa. Sep. 25, 1998); Wilkerson v. Samuels, No. 3:12-CV-1462, 2012 U.S. Dist. LEXIS 186147 (M.D. Pa.
Dec. 13, 2012); Loyal v. Lanigan, Civil Action No. 15-5769, 2016 U.S. Dist. LEXIS 116050 (D.N.J.
Aug. 30, 2016); Stile v. Fed. Bureau of Prisons, No. 16-3832, 2016 U.S. Dist. LEXIS 114445 (D.N.J.
Aug. 25, 2016); Stile v. United States of America, No. 16-3832 (RMB), 2016 U.S. Dist. LEXIS 145388
(D.N.J. Oct. 20, 2016).
4 Plaintiff, and Plaintiff Counsel, are African-American.

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 Case 2:17-cv-04271-MMB Document 39 Filed 02/20/18 Page 15 of 18

Comparing athletes to prisoners is contemptible. See, e.g., Kelley D. Evans,

“Texans players enraged over Bob McNair’s ‘inmates’ comment and these are the facts,”

TheUndefeated.com, Oct. 28, 2017, attached hereto as Ex. 5.

So, Defense Counsel have engaged in disingenuous efforts here – and in Berger and

Dawson, before – to obfuscate that, when boiled down, Defendants assert the legal right to

treat Scholarship Athletes under NCAA-defined amateurism the same as unpaid prison labor

under the Thirteenth Amendment.

Defense Counsel succeeded in obfuscating this truth in Berger and Dawson,

misleading those courts regarding the limited applicability of Vanskike to prisoners. Indeed,

the Thirteenth Amendment, exhaustively discussed in Vanskike as the ground for dismissal,

is not referenced at all in the Berger and Dawson decisions.

Defense Counsel try the same here, falsely stating “there is no ‘prisoner exception’ to

the FLSA” in spite of the Thirteenth Amendment. Defense Counsel never even acknowledge

the Thirteenth Amendment when discussing Vanskike in their moving and reply papers.

But, here and now, Defense Counsel’s sanctionable conduct is laid bare, and the crux

of their argument that Defendants have the legal right to treat college athletes the same as

unpaid prison labor is obvious. See, e.g., Sally Jenkins, “Are college athletes the same as

prisoners? These judges seem to think so,” The Washington Post, Jan. 5, 2017, attached to

Pl.’s’ Mot. for Sanctions as Ex. 2

Defense Counsel are asking this Court to create, out of whole cloth, a FLSA exemption

for NCAA-defined amateurism, neither enumerated nor defined in the statutory language

of the FLSA, and to give such unprecedented exemption the same claim preclusion effect as

the Thirteenth Amendment applied to prisoners.

This Court should reject Defense Counsel’s invitation to engage in judicial activism,

and sanction them.

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 Case 2:17-cv-04271-MMB Document 39 Filed 02/20/18 Page 16 of 18

Respectfully submitted,

s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
Telephone: (267) 238-3835
Facsimile: (267) 238-3801
Email: paul@plmcdonaldlaw.com
Counsel for Plaintiff and the
Proposed Collective
Dated: February 20, 2018

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 Case 2:17-cv-04271-MMB Document 39 Filed 02/20/18 Page 17 of 18

CERTIFICATE OF SERVICE

I hereby certify that on February 20, 2018, the foregoing document was served on

counsel by filing via the CM/ECF system, which will send an email notice to registered parties.

s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC

Counsel for Plaintiff and the

Proposed Collective
 Case 2:17-cv-04271-MMB Document 39 Filed 02/20/18 Page 18 of 18

ERRATUM

Please note the following Erratum in Plaintiff’s Motion for Sanctions for Failure to

Comply with Rule 11(b) (ECF 27).

On page 23, the third full paragraph from the bottom contains an incorrect reference to

Motion n.13, supra:

So, although antitrust cases are not applicable to FLSA claims,

O’Bannon and Bd. of Regents (finding that a NCAA television
plan violated antitrust law; see n.13, supra,) demonstrate that
NCAA-defined rules are far from sacrosanct and not law.

The correct reference is to Motion n.14, supra.

Respectfully submitted,

s/ Paul L. McDonald
Paul L. McDonald
P L MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
Telephone: (267) 238-3835
Facsimile: (267) 238-3801
Email: paul@plmcdonaldlaw.com
Counsel for Plaintiff and the
Proposed Collective