National Collegiate Athletic Association headquarters in Indianapolis, Indiana. Photo: Shutterstock

The National Collegiate Athletic Association and Villanova University have asked a federal court to dismiss a former college football player’s lawsuit alleging that he is owed wages for his time as a scholarship athlete for the school.

The NCAA and Villanova on Monday filed a summary judgment motion in Livers v. National Collegiate Athletic Association. The lawsuit, which raises claims under the Fair Labor Standards Act, had been granted a green light in July after U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania determined that plaintiff Lawrence “Poppy” Livers made a plausible argument that scholarship athletes, like work study students, qualify as students under the FLSA.

The latest effort to dismiss the case focuses on the argument that Livers failed to bring the suit within the two-year statute of limitations. Although the statute of limitations can be expanded to three years if a defendant is shown to have acted willfully, attorneys for the NCAA and Villanova contended that, because there is no case law indicating that scholarship students constitute employees under the FLSA, they cannot be found to have willfully violated the law.

“Because there is no authority stating that student-athletes are ipso facto employees of the school for whom they play—indeed the existing authorities draw the opposite conclusion—there exists no law that defendants could have disregarded, either intentionally, or merely recklessly,” Los Angeles-based Constangy Brooks, Smith & Prophete attorney Steven Katz said in the motion he filed for the NCAA and Villanova. “Even if the court were inclined to make new law on this issue, it is impossible for defendants to have willfully violated a new rule before it was ever announced.”

In May, Baylson dismissed much of the first iteration of Livers’ suit, which included claims against multiple schools. Baylson had determined that Livers could only bring claims against schools he attended. Baylson further held that, since Livers’ last season with Villanova football ended Dec. 13, 2014, and his complaint was filed Sept. 26, 2017, he failed to sue within the statute of limitations.

Still, Baylson said Livers should be afforded “the opportunity to amend his complaint to allege additional facts, if he can, addressing willfulness in order to attempt to overcome the time bar to his claim.”

In July, after Livers renewed his claims against the NCAA and Villanoa, Baylson said the former player had made a plausible argument that scholarship athletes fell within the employee status. The judge further said the defendants had been “aware of this when they chose not to pay them, suggesting reckless disregard of the alleged duty.”

In their motion filed Monday, the defendants contended that 60 years of case law from state courts hold that student athletes are not students, and, in the years since Livers brought his suit, several federal courts, including the U.S. Court of Appeals for the Seventh Circuit, have also found that student athletes are not “ipso facto” employees.

“Even if plaintiff were able to persuade this court that the law should change—and that is an extraordinarily big ‘if’—it could not change the conclusion that defendants acted in accord with ‘a reasonable interpretation of existing law’ in the past, and were accordingly not willful,” the motion said.

Paul L. McDonald of PL McDonald Law in Philadelphia represents Livers and did not respond to a request for comment. Press offices for NCAA and Villanova both did not return a request for comment Tuesday morning.