In the latest antitrust lawsuit against the NCAA, three former volunteer college coaches demand they should have been paid for their “work.”
Joseph Colon (Fresno State wrestling), Shannon Ray (Arizona State track and field) and Kyle McKinley (Oklahoma track and field) depict NCAA member schools as running a “buyer-side cartel” in which schools agree to not pay certain coaches.
These arguments are raised in a 15-page complaint filed in a California federal court last week by Darryl Horowitt and other attorneys. The three coaches insist that NCAA member schools have unlawfully conspired to price fix—specifically, setting “the compensation of an entire category of college coaches at zero.”
The trio hopes their case is certified as a class action on behalf of more than 1,000 individuals who are, or have been, volunteer DI coaches from March 17, 2019, to June 30, 2023, the date when the NCAA will lift a rule that caps the number of coaches. Although the rule is going away, the coaches maintain they have already “suffered … economic damage” in the form of lost salaries, health insurance, housing and other workplace benefits when “required to work for no pay.” They also contend that future salaries for former volunteer coaches will be lower since wages usually reflect previous compensation.
Colon, Ray and McKinley stress that volunteer college coaches aren’t assisting for a few hours here andthere. Instead, they “perform all or many of the same duties as the paid coaches,” with many “volunteers” working more than 40 hours a week in a “full-time job.” The work includes coaching players, assisting in strategy sessions and traveling with the team.
The three coaches recognize that NCAA coaching rules vary, with one bylaw permitting member schools to bring on additional coaches as volunteers unless the sport is football or basketball. The key point, they maintain, is that colleges which ordinarily compete—including for coaches—have agreed to not pay a class of coaches. Colleges allegedly take advantage of volunteer coaches since “career aspirations and love of sport” lead some individuals to accept jobs without pay.
Colon, Ray and McKinley emphasize that 25 years ago a federal appeals court held a “similar but less draconian” NCAA rule illegal under antitrust law.
In Law v. NCAA, a group of basketball coaches challenged an NCAA provision that limited pay for an entry level DI coach (dubbed a “restricted earnings coach”) to $12,000 for the academic year and $4,000 for the summer. The antitrust problem with that provision—like the one at issue in Colon v. NCAA
—is that it reflected competing businesses (i.e., the colleges) agreeing to limit how much they spend on labor. The NCAA argued the restriction promoted competitive balance since every DI school had to abide by it, but the courts disagreed, viewing it as price fixing. The NCAA was ordered to pay about $22 million in damages, which under antitrust law was automatically trebled to $67 million (to avert appeals, the coaches and NCAA settled for $54.5 million).
Colon v. NCAA doesn’t include baseball coaches because it follows Smart v. NCAA, a similar lawsuit filed last November by two former volunteer college baseball coaches, Taylor Smart (Arkansas) and Michael Hacker (UC Davis), in a California federal court. One “had to work a second job, as a camp coordinator for the school, to earn money.” When the Covid-19 pandemic shut down camps, the coach was denied pay altogether while other assistant baseball coaches were still paid salaries and benefits. Smart and Hacker hope their case is certified as a class action on behalf of volunteer baseball coaches at DI schools.
The NCAA will answer the complaint in Colon v. NCAA and seek its dismissal. As a preview of what to expect, the NCAA filed a 47-page motion to dismiss Smart v. NCAA in late February and raised several defenses.
One is that the baseball coaches do not allege their universities “would have hired them as paid coaches if the NCAA’s bylaws permitted it.” In other words, the universities might have liked them as volunteers but not enough to pay them. If the schools had to pay them, the coaches might have been told to look elsewhere for coaching opportunities.
Some DI coaches, such as Nebraska baseball coach Will Bolt, have said opportunities to coach as volunteers were crucial in their career development. They worry about the unintended consequences of shifting to a pay-model, where some schools might not be willing or able to pay.
Relatedly, the NCAA questions why Smart and Hacker would not “simply seek better pay elsewhere, defeating the purported scheme.” The two coaches didn’t have to coach baseball at a DI school.
To that end, the NCAA argues that coaching baseball in DI is “improperly narrow” as an alleged market for antitrust purposes since DI schools compete for coaches with MLB, minor league baseball, DII and DIII schools, colleges that aren’t in the NCAA, and high schools. The NCAA noted that Hacker “switched from coaching junior college baseball to being a volunteer coach.”
Expect a similar set of defenses to arise in Colon v. NCAA.
