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Friday, October 24, 2014

The Eleventh Amendment is a pain

This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.

Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.

Posted by Howard Wasserman on October 24, 2014 at 08:36 PM in Civil Procedure, Howard Wasserman, Sports | Permalink

Comments

Thanks for your post. Of course, those suits would still be available in those states that have waived their Eleventh Amendment immunity under the FLSA (Minnesota, North Carolina, Illinois, AFAIK.)

Posted by: Matt Bosworth | Oct 27, 2014 1:34:39 PM

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