Trey Johnson, a former Villanova University football player, couldn’t have predicted the current connection he has with friend and ex-teammate Poppy Livers.
“When I was getting recruited to Villanova, Poppy was my host,” Johnson said.
More recently, Livers helped recruit him to a different venture, officially filed in United States District Court in Philadelphia as RALPH “TREY” JOHNSON, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al, Defendants.
The “et al” includes Villanova. If adjudicated in the plaintiffs’ favor, this suit could potentially rock NCAA schools even more than the recent Name, Image and Likeness revolution, because the schools would be the ones paying their athletes a minimum wage, not just supporting the rights of their athletes to find endorsements. The suit argues that Division I college athletics is more for the benefit of the college than the athlete.
“They say you’re a student-athlete, but I think it’s really athlete-student,” Johnson said in a recent telephone interview. “The game comes first. It’s the last thing you think about before you go to sleep, the first thing you think about when you wake up.”
Livers had been lead plaintiff in an earlier suit against the NCAA and Division I schools, alleging that the NCAA’s limits on compensation for sports violate the wage-and-hour provisions of the Fair Labor Standards Act. To use that as a standard for college athletes, they are looking to prove athletes are employees of the college.
“I was there to be an athlete,” Livers said in a separate interview, adding that he wasn’t speaking against Villanova, since this lined up with his own goals. “Without being an athlete, I probably wouldn’t have been there. … I was there to take whatever class I needed to continue to play.”
While previous similar suits have hit judicial dead ends, has the current legal and cultural environment regarding college sports changed to the point of impacting rulings for this kind of suit? The NCAA argues legal precedents are clear-cut against athletes being employees.
The current case hasn’t reached the discovery stage yet. The plaintiffs still need to prove their allegations. But two previous motions to dismiss were set aside. U.S. Eastern District Court Judge John Padova, based in Philadelphia, wrote that the case can proceed on the issue of whether Division I sports is there primarily for the athletes or the monetary benefit of the school, and also whether sports provides educational opportunities or interferes with them.
In his concurrence of the recent unanimous Supreme Court Alston decision declaring that the NCAA can’t limit education-related benefits like computers and paid internships that colleges can offer athletes, Justice Brett Kavanaugh wrote “that colleges may decline to pay student athletes because the defining feature of college sports . . . is that the student athletes are not paid. . . . is circular and unpersuasive.”
The defendants’ attorneys state in their latest motion to dismiss the current case: “If anything, by strongly distinguishing education-related financial support for student athletes from direct compensation for playing sport, Alston supports the principle that the economic reality of student athletics is — and should continue to be — that student athletes do not receive ‘unlimited payments unrelated to education, akin to salaries seen in professional sports leagues.’”
In a case involving former Penn women’s track athletes, a District Court in Indiana ruled in 2016 that athletes were not employees. Part of the argument that held sway was that the activity was primarily for the benefit of the participants in a non-revenue sport such as track and field. There also are political hurdles over these issues.
“States, Michigan and Ohio in particular, both had quietly, without notices to players, passed through laws that would deny players’ employment status in perpetuity,” said Ellen Staurowsky, a longtime Drexel professor, now fulltime at Ithaca College, but still teaching graduate courses at Drexel. “I do think something profoundly changed in terms of the legal landscape as a result of the Supreme Court’s opinion in Alston. Not suggesting this case is suddenly easy.”
But the landscape has undeniably shifted. While the National Labor Relations Board in 2015 declined to back up a regional director’s decision to allow Northwestern football players to unionize, NLRB general counsel Jennifer Abruzzo issued a memorandum to all field offices Wednesday providing updated guidance regarding her position that “certain Players at Academic Institutions are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.”
Her intent in issuing the memorandum, Abruzzo said in a release, was to “help educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, about the legal position that I will be taking regarding employee status ...”
Abruzzo mentioned in the memorandum that “nothing in that [NLRB Northwestern] decision precludes the finding that scholarship football players at private colleges and universities, or other similarly situated Players at Academic Institutions, are employees under the Act.”
‘Poppy actually reached out to me about it’
It was at a 2016 College Athletes’ Rights & Empowerment conference put together by Staurowsky that Philadelphia-based attorney Paul McDonald, who had represented the Penn athletes and now was trying a different path, met a panelist from the Arena Football League Players Association who, McDonald said, suggested Livers as a possible plaintiff.
The Livers case was voluntarily withdrawn, McDonald said, based on an interpretation of the statute of limitations. Eventually in 2019, Johnson became the new lead plaintiff.
“Poppy actually reached out to me about it,” Johnson said, and the former Villanova defensive back said he quickly agreed to the merits of the argument.
A spokesman for Villanova said the school does not comment on pending litigation. In a statement to USA Today, the NCAA called rulings made so far “a preliminary view of the plaintiffs’ allegations, and we are confident that when the court has a chance to see the actual evidence, it will agree with the many previous courts who have held that student-athletes are not employees.”
Other current plaintiffs in the Johnson suit include a former Fordham swimmer and a former Fordham baseball player, former tennis players from Sacred Heart and Lafayette, and a former Cornell soccer player. This suit originally listed 25 Division I schools as plaintiffs, including Drexel, La Salle, Penn, Princeton, St. Joseph’s, Temple, Penn State, and Rutgers, with all other D1 schools tagged on. The court dismissed that portion of the claim, but did not dismiss the NCAA itself as a defendant. Other D1 schools playing FBS football have been added to the suit.
The NCAA’s latest legal motion to dismiss the case was, well, dismissive, suggesting the legal ground is clear, noting “... the Seventh Circuit has — directly — when it held ‘as a matter of law, that student athletes are not employees under the [Fair Labor Standards Act].’ ”
Villanova as poster child
The Johnson suit uses Villanova as a poster child for its argument. And the factual background from Padova’s recent opinion states, “Student athletes at NCAA D1 schools must schedule classes around their required NCAA athletic activities and cannot reschedule their NCAA athletic activities around their academic programs. As a result, Villanova University only excuses a student athlete from participating in required athletic activities if there is a conflict between practice and a mandatory core class.”
“My major was supposed to be physics,” Johnson said in a phone interview. “I was deterred from picking that major, because they had classes that would [conflict with] the practice schedule.”
Whether Johnson would have stuck with physics is conjecture since he veered away from science, majoring in communications, but a look at the class schedule for Villanova’s physics department, with many required courses offered in the mornings, does suggest twinning football and physics would cause scheduling conflicts.
As much as thinking about a major, Johnson said he went to Villanova with the idea of starting on the football team immediately.
“Every other college was telling me I would have to redshirt,” Johnson said. “My mindset was, this is a job. I can’t miss days for class.”
Johnson, who said he now works as a financial representative in Tampa, Fla., was signed as a free agent by the Pittsburgh Steelers and Denver Broncos, but cut before playing a regular-season game.
Did playing football at Villanova pay off for him?
“There are layers to that,” Johnson said. “The name that Villanova holds definitely helps.”
“The reason he was getting a scholarship, it’s not to benefit him, it’s because the school needs him there to play football,” alleges his attorney, Michael Willemin.
If athletes were paid, “they’d have to shift some of the money they currently pay the adults and on facilities to the kids,” said McDonald, the attorney who had recruited Livers to the suit, then turned to Willemin to represent Johnson.
“I’m just a solo practitioner,” said McDonald, who had filed three earlier versions of this suit. “I’m a guy hustling. Mike is the one who has resources. We wanted to have a diverse group of athletes, both in terms of gender, sports, walk-ons and scholarships athletes.”
The suit notes that Villanova “reported total revenues from NCAA sports of $48,977,278 in its 2018 fiscal year.” But does Villanova football make money on its own? What about all the non-revenue sports that have scholarship athletes?
“Even assuming some of these sports were losing enterprises, there are plenty of companies that don’t turn a profit,” Willemin said. “They still have to pay their employees.”
McDonald framed the argument this way: “When people talk about athletes getting scholarships, they should also talk about academic scholarships. If you have an academic scholarship and go work in the library, they can still pay you. They never say the [athletic] scholarship is pay, because they understand if it is, they’re going to lose every single antitrust case.”
“All we’re seeking in this case … is the bare minimum wage,” Willemin said.
‘It put me into debt’
When Livers was first approached by McDonald to become a plaintiff in a suit looking for college athletes to be paid for their work, what made the whole issue seem on target to the point he’d want to get involved?
“Everything,” Livers said.
Livers had been a Villanova team captain for the 2014 season, a legit football star, team leader in receptions as a junior and senior. He’d also shown up as a walk-on, without a scholarship, eventually earning one after two seasons where college was paid for by financial aid, including loans.
“It put me into debt … I think it was like $20,000,” Livers said of his loans owed when he left Villanova. “Who knows what it is now.”
Meaning more or less?
“They’re definitely higher,” Livers said of what he owes.
He thinks back to not being able to afford to go home from Villanova for Christmas break, then goes back further.
“My mom left at 14,” Livers said. “My story is different. I’m happy where I’m at now. It taught me to grind. I went into survival mode. I was couch-surfing through high school.”
At his height, listed at 5-foot-7 in his playing days, Livers had limited options, and no D1 scholarship offers.
“This has nothing to do with Villanova,” Livers said. “It’s the system. I would go up there, tell [former teammates], ‘Bro, this has nothing to do with Villanova personally.’ ”
If, for instance, Villanova had wanted to forgive those loans after Livers became a starter and then a star, it would have been against NCAA rules on scholarship limits.
McDonald had come to Livers, but this case was already in his head. He goes back to a conversation he’d had with his own father, back when Johnny Manziel, Johnny Football himself, had become a rock star at Texas A&M, with his footballing exploits leading to all sorts of money flowing through the Aggies coffers.
“We got to talking — they always say, they’re students, they can’t be employees — but that doesn’t make sense,” McDonald said. “Amateurism, if you do a word search for it … there’s no legal basis for it. It’s all a construct that they [colleges] have come up with for their own purposes.”
The case won’t be decided by the court of public opinion. However, Staurowsky notes how profoundly the landscape has shifted. She recently had a guest speaker in her Ithaca class, “College sport in the age of athlete activism.” The speaker asked students if they think college athletes are employees.
“I was surprised to see the majority of students raise their hands,” Staurowsky said. “Many of the athletes talked about the demands on them. Some of them said that even at the Division III level, they were thinking this was an employment.”
Maybe that doesn’t quite constitute a jury of peers, but it is an interesting little poll of current opinion.
“I had intentionally stayed away from that question,” Staurowsky said. “I was [first] trying to give them history and context.”
The question now, the ball still up in the air, will “RALPH ‘TREY’ JOHNSON, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al, Defendants” join that history?