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Week 2

A. Should schools Pay Student-Athletes Salary?

Labor Code
4 Fold Test - The kind of work performed or its nomenclature is not the definitive test of whether the worker
is an employee or not. Generally, the four-fold test or control test is used to determine the existence of
an employer-employee relationship.

The four-fold test includes:

• Selection and engagement of the employee

• Payment of wages

• Power to dismiss

• Power to control the means and methods employed

NLRB counsel: Football players at private FBS schools are employees

Football players at private universities who compete at the NCAA's highest level are employees and
entitled to protection from unfair labor practices, the National Labor Relations Board's general counsel
stated this week. Richard Griffin, the NLRB's general counsel, sent a memo Tuesday to the board's
regional directors stating that Football Bowl Subdivision football players are employees under the National
Labor Relations Act because "they perform services for their college and the NCAA, subject to their control,
in return for compensation." While this opinion does not carry the weight of the full board, it could open the
door for future labor complaints on behalf of football players at the 17 FBS private universities. "I think it's
significant and an invitation to players that if they want to file unfair labor practices to protect their rights, the
NLRB regional offices will accept the charges," said John Adam, the attorney in a Northwestern football
case that raised this issue. "It's not the end of it, obviously. Ultimately, the board will decide if a charge is
filed and the courts get a chance to review it."According to Griffin, the memo was sent to clarify the
unanswered question about whether Northwestern football players are employees. In 2015, the NLRB's
five-member board ruled that Northwestern players could not try to unionize because doing so would create
chaos for public and private universities. The NLRB only governs private employers and their employees,
and has no power over public universities.

But the NLRB punted on the question about whether the Northwestern players are employees who have
the right to be protected from retaliation.
"Scholarship football players should be protected [by the NLRA] when they act concertedly to speak out
about aspects of their terms and conditions of employment," Griffin wrote. "This includes, for example, any
actions to: advocate for greater protections against concussive head trauma and unsafe practice methods,
reform NCAA rules so that football players can share in the profit derived from their talents, or self-
organize, regardless of whether the Board ultimately certifies the bargaining unit.” The NCAA pushed back
on the relevance of the general counsel's memo, which was first reported by Inside Higher Education. "The
general counsel's memo and personal opinion do not reflect a binding position of the NLRB," NCAA chief
legal officer Donald Remy said in a statement. "As we have stated before and he was obligated to
acknowledge, the NLRB previously decided that it would not exercise jurisdiction regarding the employment
context of student-athletes and their schools. The general counsel's memo does not change that decision
and does not allow student-athletes to unionize. Students who participate in college athletics are students,
not employees.

"Recently, a United States Court of Appeals confirmed that fact. Any distinction by sport or division
misunderstands the student-athlete experience. We, along with our member schools, will continue to
provide the best support possible for all college athletes.” Federal courts have shied away from identifying
NCAA athletes as employees. In January, the Seventh Circuit Court of Appeals affirmed an Indiana federal
court's dismissal of a case by University of Pennsylvania track and field athletes, who claimed they were
entitled to compensation as employees under the Fair Labor Standards Act. The majority opinion
concluded that college athletes have no more right to ask whether they might be employees than inmates
who are in prisons. Griffin acknowledged his memo can't and shouldn't resolve "divisive" questions about
whether football players should be treated differently than "equally committed" athletes in non-revenue
sports. Griffin said he wants the NLRB's prosecutorial position known so private universities comply with
their obligations. Without a full investigation of future complaints, "we cannot conclusively determine the
employee status of other kinds of student athletes in cases that may arise in the future," Griffin wrote. Last
year, in response to a complaint from a California labor lawyer that Northwestern was guilty of unfair labor
practices, the NLRB issued an advice memo for Northwestern over some of its policies. The NLRB
dismissed the charges after Northwestern changed rules for players related to social media, media
interviews and discussing health and safety issues.

In this week's memo, Griffin concluded that a scholarship for football players equates to compensation for
playing. "The players' compensation is clearly tied to their status and performance as football players, since
they risk the loss of their scholarships if they quit the team or are removed because they violate their
school's or the NCAA's rules," he wrote. Griffin cited a 2016 NCAA study showing football players report a
median of 42 hours per week on football-related activities during the season, more than any other sport.
The five major NCAA conferences passed legislation last month they say will lighten the time demands for
athletes. Griffin identified several ways he believes schools control scholarship football players that
resemble an employment relationship:
Daily itineraries that regulate players' hourly tasks.
Players need to retain certain grades while football activities interfere with classes.
Coaches can penalize players, "including firing them from the football team resulting in the loss of
their scholarships."
Football players are required to seek permission before living off campus, applying for outside
employment, driving personal vehicles, traveling off campus and posting items on the internet.

What the opinion can't say is the makeup of the general counsel and board members for the NLRB moving
forward. The four-year term of Griffin, who was appointed by former President Barack Obama, expires in
Three of the five sitting board members are from the Democratic majority. They have staggered five-year
terms and President Donald Trump will eventually appoint the majority of the board.

For now, Griffin's opinion means any interested party could bring unfair labor practice charges to the NLRB
about private football players. A union or interested group can file charges with evidence, and it doesn't
necessarily have to be a specific player, Adam said.
"If it's a school or team rule, you might not need testimony from players," Adam said. "But that's obviously
the easiest way to do it."
College Athletes Players Association director Ramogi Huma, who helped organize the Northwestern union
attempt, said the memo shows athletes have rights they can assert. "They can reach out to us. There's
options at this point," Huma said. "One hurdle is that most players have no idea whether or not their school
is violating labor law. But it doesn't hurt to ask. It doesn't hurt to reach out and see if they're being treated
fairly under the labor law."
Dawson v. NCAA

Plaintiff Lamar Dawson, a former college football player for the University of
[250 F.Supp.3d 403]

Southern California ("USC"), brings this putative class action lawsuit against the National Collegiate Athletic
Association ("NCAA") and the PAC-12 Conference ("PAC-12") for violations of the Fair Labor Standards Act
("FLSA") and the California Labor Code. Defendants move to dismiss on the grounds that student athletes
are not covered under either statute and Dawson lacks standing to sue. Defendants rely heavily on the
Seventh Circuit's opinion in Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285 (7th Cir. 2016), which
held, as a matter of law, that former student athletes of NCAA Division I schools are not "employees" under
the FLSA. While the Berger decision, as out of circuit authority, is not binding and the parties dispute its
applicability, its reasoning is persuasive and defendants' motion will be granted.

From 2011 to 2015, Dawson played football for the University of Southern California, a Division I Football
Bowl Subdivision (FBS) member of the PAC-12. He alleges that, in that capacity, he was denied full pay for
all hours worked, including overtime pay, and was frequently permitted to work without receiving required
minimum wage payments. He further alleges that the rules governing student athletes who play football for
the NCAA and PAC-12 member schools are set in the first instance by the NCAA, and then adopted by
PAC-12. On this basis, he claims that NCAA and PAC-12 are joint employers of student athletes who play
Division I FBS football on behalf of member schools. He brings claims against the NCAA and PAC-12 for
violations of the FLSA and the California Labor Code, as well as derivative claims under California's Private
Attorneys General Act ("PAGA") and Unfair Competition Law ("UCL"). He brings suit on behalf of a "FLSA
Class," which appears to include any Division I FBS football player in the United States, and a "California
Class," which appears to include student athletes in football programs at NCAA member schools in
California, as well as several California sub-classes based on specific Labor Code violations.


A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). While "detailed factual allegations" are not required, a complaint must have
sufficient factual allegations to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible "when the pleaded factual content allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." This standard asks for "more than a sheer possibility that a defendant acted unlawfully." Id. The
determination is a context-specific task requiring the court "to draw on its judicial experience and common
sense." Id. at 679, 129 S.Ct. 1937. A motion to dismiss a complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may be based
either on the "lack of a cognizable legal theory" or on "the absence of sufficient facts alleged under a
cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When
evaluating such a motion, the court must accept all material allegations in the complaint as true, even if
doubtful, and construe them in the light most favorable to the non-moving party. Twombly, 550 U.S. at 570,
127 S.Ct. 1955. "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a
motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.
1996); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("threadbare recitals of the elements of the claim for
relief, supported by mere conclusory statements," are not taken as true).

A. Article III Standing
To start, defendants argue that Dawson lacks standing to sue. Dawson has the burden of establishing that
"(1) [he] has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992)). Under the FLSA, alleged employees' "injuries are only traceable to, and redressable by, those who
employed them." Berger, 843 F.3d at 289 (citing Roman v. Guapos III, Inc., 970 F.Supp.2d 407, 412 (D. Md.
2013)). Accordingly, in cases like this one, courts have reasoned that "the question of a plaintiffs standing
turns on whether she has sufficiently alleged that she was `employed' by defendants, as that concept is
interpreted in the context of the FLSA." Cavallaro v. UMass Mem'l Health Care, Inc., 971 F.Supp.2d 139,
146 (D. Mass. 2013); see also Crumbling v. Miyabi Murrells Inlet, LLC, 192 F.Supp.3d 640, 644 (D.S.C.
2016) ("[T]he Court must conduct an employer analysis to determine whether Plaintiffs may trace their
injuries to each Defendant."); Sandoval v. Ali, 34 F.Supp.3d 1031, 1039 (N.D. Cal. 2014) (same). At the
hearing, the parties agreed that the standing inquiry converges with the substantive FLSA employer inquiry.
In Berger, however, the Seventh Circuit treated the inquiries as distinct. It held student athletes had
standing to sue their university despite ultimately concluding the students were not "employees" under
FLSA. Irrespective of the FLSA employer analysis, the court found plaintiffs plausibly alleged injury
traceable to the university, but not the NCAA because joint employment was not mentioned in the
complaint. See id., 843 F.3d at 289. Here, in contrast, Dawson has alleged NCAA and PAC-12 are joint
employers of the student athletes. See Comp. ¶¶ 48-50. As a general matter, it is uncontested that liability
in the FLSA context is predicated on the existence of an employer-employee relationship. It seems to
follow, thus, that Dawson's injuries are only traceable to, and redressable by, those defendants who are
deemed by law to have employed him—an inquiry which is addressed in the next section. In light of the
uncertainty introduced by Berger, however, discussion of the merits of defendants' motion to dismiss is

Defendants argue that Dawson is not their "employee" under the FLSA. The FLSA defines "employee" as
"any individual employed by an employer" and "employ" as including "to suffer or permit to work." 29 U.S.C.
§§ 203(g), (e). While the Supreme Court has instructed courts to construe the terms "employee" and
"employer" expansively, it has also held that the definition of "employee" "does have its limits." Tony &
Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 295, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). As a
general rule, whether there is an employment relationship under the FLSA is tested by "`economic reality'
rather than `technical concepts.'" Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S.Ct.
933, 6 L.Ed.2d 100 (1961). To guide this inquiry, courts have developed a variety of multifactor tests. The
Ninth Circuit has a four-factor test, which asks "whether the employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or conditions of employment, (3)
determined the rate and method of payment, and (4) maintained employment records." Bonnette v. Cal.
Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983). That test, however, is not "etched in stone and will
not be blindly applied." Id. at 1470. The "ultimate determination" of employer status must be based upon
"the circumstances of the whole activity." Id.
The Ninth Circuit has made clear that multifactor tests are not always a useful framework for assessing the
circumstances of an alleged employment relationship. See Hale v. State of Ariz., 993 F.2d 1387, 1394 (9th
Cir. 1993). As explained in Hale: The Bonnette factors, with their emphasis on control over the terms and
structure of the employment relationship, are particularly appropriate where (as in Bonnette itself) it is clear
that some entity is an employer and the question is which one. The dispute in this case is a more
fundamental one: Can these [plaintiffs] plausibly be said to be employed in the relevant sense at all? Id.
(citing Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir. 1992)). Here, while it is not clear that either the NCAA
or PAC-12 is an "employer," a separate question arises as to whether student athletes can be considered
"employees." In that sense, the Bonnette test does not provide the whole answer. Instead, the focus is on
the "true nature of the relationship." Hale, 993 F.2d at 1387; see also Berger, 843 F.3d at 291 (declining to
apply a multifactor test to determine the employee status of student athletes because the factors failed to
capture the nature of the relationship between the athletes and their schools).

On this question, the Seventh Circuit decided that the "the long tradition of amateurism in college sports, by
definition, shows that student athletes—like all amateur athletes—participate in their sports for reasons
wholly unrelated to immediate compensation." Berger, 843 F.3d at 293. It reasoned that student
participation in college athletics is "entirely voluntary" and, although "student athletes spend a tremendous
amount of time playing for their respective schools, they do so—and have done so for over a hundred
years under the NCAA—without any real expectation of earning an income." Id. "Simply put," it concluded,
"student-athletic `play' is not `work,' at least as the term is used in the FLSA."

Dawson argues that Berger is distinguishable because it involved track and field athletes at the University
of Pennsylvania, while this case involves Division I football players who earn "massive revenues" for their
schools. Opp. at 8. Yet, Dawson offers no legal authority to support his conclusion. At most, he points to the
concurrence in Berger and the decision of a regional director of the National Labor Relations Board
(NLRB). In the Berger concurrence, Judge Hamilton did not consider, much less find, that football players
are "employees" under FLSA. Rather, he stated, in passing, that he is "less confident" that Berger's broad
holding extends to students who receive athletic scholarships to participate in "so-called revenue sports."
843 F.3d at 294. His concurrence did not purport to represent an alternative line of legal analysis and the
full circuit in any event denied rehearing en banc.

In Northwestern University, Employer, and Collegiate Athletes Players Ass'n, Case 13-RC-121359, 2014
WL 1246914 (March 26, 2014), an NLRB regional director found that Northwestern University football
players receiving grant-in-aid scholarships are "employees" within the meaning of the National Labor
Relations Act. That decision not only involves a different statute and different types of parties (defendants
here are athletic organizations, not schools), but it was not adopted by the Board. The NLRB declined to
assert jurisdiction over the case on request for review. It reasoned that "because of the nature of sports
leagues . . . and the composition and structure of FBS football. . . it would not promote stability in labor
relations to assert jurisdiction in this case." Northwestern Univ. & College Athletes Players Ass'n, 2015 WL
4882656, 2015 NLRB LEXIS 613 (Aug. 17, 2015). Accordingly, the regional director's decision is not
entitled to deference. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.
2d 493 (1988) ("we have declined to give deference to an agency counsel's interpretation of a statute
where the agency itself has articulated no position on the question, on the ground that `Congress has
delegated to the administrative official and not to appellate counsel the responsibility for elaborating and
enforcing statutory commands.'")(citation omitted).3

In contrast, defendants' position is supported by the weight of the case law. As the Seventh Circuit noted in
Berger, "[a] majority of courts have concluded—albeit in different contexts—that student athletes are not
employees." 843 F.3d at 291 (citing cases).4 Moreover, the Department of Labor has indicated that student
athletes are not employees under the FLSA. Chapter Ten of its Field Operations Handbook (FOH)
"contains interpretations regarding the employment relationship required for the [FLSA] to apply." FOH, §
10a00. Section 10b24(a) provides that "students who participate in activities generally recognized as
extracurricular are generally not considered to be employees within the meaning of the [FLSA]." §
10b24(a). It references section 10b03(e), which explains that schools may permit or require students to
engage in extracurricular activities like "interscholastic athletics," which are "conducted primarily for the
benefit of the participants as a part of the educational opportunities provided to the students by the school
or institution, are not work of the kind contemplated by [the FLSA] and do not result in an employer-
employee relationship between the student and the school." In contrast, section 10b24(b) discusses
situations in which "an employment relationship will generally exist with regard to students." § 10b24(b).
Under that subsection, students who participate in work-study programs are "generally considered
employees under the [FLSA]." Id. These provisions are "entitled to respect," even if they are not
authoritative. Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 S.Ct. 124 (1944).

Dawson contends that Division I FBS football does not fit within the confines of section 10b24(a) because
athletes play college football for the economic benefit of the NCAA. He claims revenue-generating sports
are like work-study programs and fit with 10b24(b). Yet, section 10b03(e) refers broadly to "interscholastic
athletics" in a list of activities that do not constitute "work." It does not distinguish between sports that
generate revenue and those that do not. Also, there is a difference between work-study programs, which
exist for the benefit of the school, and football programs, which exist for the benefit of students and, in
some limited circumstances, also benefit the school.

Moreover, the premise that revenue generation is determinative of employment status is not supported by
the case law. See, e.g., Bonnette, 704 F.2d at 1470 (declining to apply a different standard to "public social
service agencies" than is applied to "profit-seeking employers"); Valladares v. Insomniac, Inc., 2015 WL
12656267, at *10 (C.D. Cal. Jan. 29, 2015) (rejecting the argument that defendant could not invoke a
specific FLSA exemption because its "revenue is in the millions of dollars"). Indeed, in examining the
"economic reality" of the relationship between student-trainees and their schools, courts have rejected the
relevance of profitability. See, e.g., Jochim v. Jean Madeline Educ. Ctr. of Cosmetology, 98 F.Supp.3d 750,
759 (E.D. Pa. 2015) ("[Defendant's] alleged profit from its clinical program does not change our analysis
under the FLSA."); Ortega v. Denver Inst. L.L.C., No. 14-CV-01351-MEH, 2015 WL 4576976, at *12 (D.
Colo. July 30, 2015) (same). California courts have reached a similar conclusion in related contexts. See,
e.g., Townsend v. State of California, 191 Cal.App.3d 1530, 1532, 237 Cal.Rptr. 146 (1987) (rejecting the
argument that "since intercollegiate athletics are `big business' and generate large revenues for the
institutions who field teams in such competition, the athletes who represent those institutions should be
considered to be employees or agents of those institutions under the doctrine of respondeat superior").

At the hearing on this motion, counsel for plaintiff argued that the Ninth Circuit's decision in O'Bannon v.
Nat'l Collegiate Athletic Ass'n, 802 F.3d 1049 (9th Cir. 2015) is instructive here. He claimed that O'Bannon
characterized the relationship between the NCAA and student athletes as "labor for in-kind compensation"
which suffices to establish an employment relationship under FLSA. Id. at 1066. Yet, as plaintiff himself
acknowledges, the scope of that decision is limited. See Opp. fn. 7. O'Bannon reaffirmed that NCAA
compensation rules are subject to antitrust scrutiny. In so doing, the court considered whether those rules
regulate any "commercial activity." It found they do, based on the broad modern legal understanding of
"commerce" and the fact that the exchange being regulated—labor for in-kind compensation—"is a
quintessentially commercial transaction." Id. The decision says nothing about the existence of an
employment relationship between student athletes and the NCAA. To the contrary, the decision notes the
Supreme Court's own description of the college football market as "a particular brand of football" that draws
from "an academic tradition." Id. at 1074 (citing NCAA v. Board of Regents of the University of Oklahoma,
468 U.S. 85, 102, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984)). The Ninth Circuit reasoned that "not paying
student-athletes is precisely what makes them amateurs," id. at 1076 (emphasis in original), and concluded
that "the difference between offering student-athletes education-related compensation and offering them
cash sums untethered to educational expenses is not minor; it is a quantum leap." Id. at 1078. Ultimately,
plaintiff is looking for O'Bannon to carry a weight it cannot shoulder. Leaving aside the policy question of
whether and how Division I FBS college football players should be compensated, there is simply no legal
basis for finding them to be "employees" under the FLSA.5 The guidance from the Department of Labor
weighs against such a finding, as do the decisions from courts that have considered the issue. Dawson's
FLSA claim must therefore be dismissed.

B. California Labor Code

Defendants also argue that Dawson is not their "employee" under the California Labor Code. They rely on
a line of cases holding that student athletes are not employees in the context of other California statutes,
stemming largely from the California legislature's decision to amend Labor Code section 3352 to exclude
student athletes from the term "employees" for purposes of worker's compensation.
The amendment to Section 3352(k) resulted from the decision in Van Horn, where a court of appeal held
that a student athlete who received financial aid, partially in the form of an athletic scholarship, was an
employee of his university for purposes of worker's compensation. In response to Van Horn, the California
legislature amended Labor Code section 3352 to exclude athletic participants as employees. See Graczyk
v. Workers' Comp. Appeals Bd., 184 Cal.App.3d 997, 1002, 1005-1006, 229 Cal.Rptr. 494 (1986) (detailing
legislative amendments to § 3352 since the Van Horn decision to "clarify the exclusion of athletic
participants" as employees).

In Townsend, a court of appeal held that student athletes are not employees of their universities for
purposes of the Tort Claims Act. It relied, in part, on the amendment to section 3352(k), which it viewed as
evidencing "an intent on the part of the Legislature to prevent the student-athlete from being considered an
employee of an educational institution for any purpose which could result in financial liability on the part of
the university." 191 Cal.App.3d at 1537, 237 Cal.Rptr. 146. It also reasoned that colleges "are not in the
`business' of playing football or basketball any more than they are in the `business' of golf, tennis or
swimming. Football and basketball are simply units of an integrated multisport program which is part of the
education process. Whether on scholarship or not, the athlete is not `hired' by the school to participate in
interscholastic competition." Id. at 1536, 237 Cal.Rptr. 146. Later, in Shephard v. Loyola Marymount Univ.,
102 Cal.App.4th 837, 125 Cal.Rptr.2d 829 (2002), a court of appeal extended this analysis to claims under
the Fair Employment and Housing Act (FEHA). It characterized Townsend and Graczyk as persuasive
decisional authority, and found no reason to distinguish their reasoning in the FEHA context. It further relied
on the application of traditional statutory construction principles to reach the conclusion that a student
athlete is not a school employee for purposes of FEHA. It explained that "statutes relating to the same
subject matter must be harmonized insofar as is possible" and that "when words used in a statute have
acquired a settled meaning through judicial interpretation, the words should be given the same meaning
when used in another statute dealing with analogous subject matter; this is particularly true, where . . . both
statutes were enacted for the welfare of employees and are in harmony with each other." Id. at 846, 125
Cal.Rptr.2d 829. It concluded that Labor Code section 3352 (k) and FEHA, "both of which are designed to
provide workplace protections for employees, should be construed together in a harmonious fashion." Id.
The same logic applies here.

Dawson argues that these cases are inapposite because § 3352(k) is inapplicable in these circumstances.
Invoking expressio unius est exclusio alterius, he contends that it would be a mistake to apply a limited and
specific exclusion in section 3352(k) to provisions in other divisions of the Labor Code that were not
provided for by the legislature. In so doing, he ignores the recent line of cases, like Shephard and
Townsend, extending the policy underlying § 3352(k) to other contexts. Unable to distinguish Shephard,
Dawson argues that "much has changed concerning the status of athletes since the time that Shephard
was decided." Opp. at 23. Yet, the Shephard decision, issued in 2002, acknowledged that basketball and
football "generate significant revenue." 102 Cal.App.4th at 844, 125 Cal.Rptr.2d 829 (citing Townsend, 191
Cal.App.3d at 1536, 237 Cal.Rptr. 146). There is no reason to ignore or distinguish this line of cases. See
In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990) ("[I]n the absence of convincing evidence that the
highest court of the state would decide differently, a federal court is obligated to follow the decisions of the
state's intermediate courts.") (internal citations omitted). In light of the relevant decisions of the California
legislature and courts of appeal, Dawson's Labor Code claims are dismissed.

C. Derivative Claims
Dawson acknowledges that his claims under the UCL and PAGA are derivative of his FLSA and Labor
Code claims. Accordingly, those claims must also be dismissed.

Defendants' motion to dismiss is granted. Because Dawson's complaint is based on an untenable legal
theory, amendment would be futile. The complaint is thus dismissed without leave to amend. See Serra v.
Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010).
Allowable Benefits under the Student-Athletes Protection Act (SAPA)

Section 5. Benefits and Incentives. – Schools may grant a deserving student-athlete the following benefits
and incentives:
(a) Tuition and miscellaneous school fees including books and other learning materials;
(b) Full board and lodging;
(c) School and athletic uniforms including supplies, equipment and paraphernalia;
(d) A reasonable regular monthly living allowance, the amount of which shall he set and standardized
by the athletic association to which the school is affiliated with;
(e) Medical examinations and consultations, emergency medical services, life and medical insurance
and other reasonable and similar benefits that would further enhance the academic and athletic
performance of the student-athlete; and
(f) Other reasonable and similar benefits that would further enhance the student-athlete’s academic and
athletic performance.

B. Eligibility Rules

SAPA Rules on Transfers

Section 4. Residency of Student-Athletes. – Without prejudice to the respective rules of athletic
associations on student-athletes who are foreign imports, the following rules on residency shall be
(a) Residency requirement shall not be imposed on a student-athlete who is a high school
graduate enrolling in a college or university;
(b) Residency requirement shall likewise not be imposed on a high school student-athlete
transferring from one high school to another high school: Provided, That, to address the issue of
piracy, a maximum of one (1) year residency may be imposed by an athletic association on a high
school student-athlete who transfers from one member school to another;
(c) In the case of a tertiary student-athlete transferring from one college or university to another, a
maximum of one (1) year residency may be imposed by an athletic association before a student-
athlete could participate and represent a school in any athletic competition; and
(d) The residency rules mentioned in paragraphs (a) and (b) of this section shall likewise apply to a
Filipino student-athlete from other countries enrolling in a school in the Philippines.

No school, or its representative, shall be authorized to perform the following acts on a student-athlete
on the sole reason of his/her transfer to another school:
(1) File an administrative charge for possible violation of school rules and regulations;
(2) Require the payment of tuition and other miscellaneous fees covered by the scholarship
granted, including monies given and the cash equivalent of non-monetary benefits received;
(3) Refuse to issue or delay the release of grades and school records, clearance, or transfer
(4) Give incomplete grades in subjects in which the student-athlete is exempted by virtue of being
a student-athlete; and
(5) Impose other forms of punishment.

Mickey Ingles: Let me Play Coach! Unwrapping the SAPA

In August 2015, President Aquino signed into law Republic Act No. 10676, better known as the
Student-Athletes Protection Act (SAPA). In fact, it might even be more popularly known as the Jerie
Pingoy Law, as it was ushered through by Senator and triathlete Pia Cayetano amidst controversy
surrounding a University Athletics Association of the Philippines (UAAP) rule that limited the former
FEU-FERN standout from suiting up for the Ateneo de Manila Blue Eagles.

Can I Play, Coach?

Residency requirements are imposed by the different athletic associations to prevent schools from
pirating student-athletes. For example, the UAAP or the National Collegiate Athletic Association
(NCAA) could require transfer student-athletes to sit out a year or two before they can start playing for
their new school. The SAPA now disposes of any residency requirements for high school graduates
who enroll in a different college or university. In effect, a star football player from Ateneo High can now
immediately don a De La Salle University jersey without having to sit out a year for residency.

For high school student-athletes, the law likewise disposes of the residency requirement. The sole
exception is for student-athletes who transfer between member schools of an athletic association; in
those cases, the athletic association may impose a one-year residency requirement. Hence, the UAAP
may impose a one-year residency requirement for a FEU-FERN football player who moves to De La
Salle Zobel. However, it may not impose the residency requirement for a UST Tiger Cub who
transferred from San Beda High School (which is a NCAA member).
For college and university student-athletes, the athletic association may impose a one-year residency
requirement, regardless if the student-athlete transfers from a member school or not.
To bolster the protection of the student-athlete, schools are not allowed to retaliate against the
student-athlete if he or she transfers to another school. These prohibited acts include filing an
administrative charge on the student for violation of school rules, requiring payment of a previously
granted tuition scholarship, and refusing or delaying the issuance of grades and school clearance

Show Me the Money?
Aside from limiting residency requirements, the law also enumerates the types of benefits and
incentives that can be given to student-athletes by schools. These include the usual tuition
scholarships, lodging expenses, medical services, athletic gear, and reasonable monthly allowances
(which are to be determined by athletic associations). Aside from these benefits, schools are not
allowed to even offer the student-athlete (and his immediate family) anything else.
While the law seeks to protect student-athletes from commercialization, it does include some vague
language that may be used to circumvent its laudable goals. Among the allowable benefits are “other
reasonable and similar benefits that would further enhance the student-athlete’s academic and athletic
What constitute “reasonable and similar benefits” will be interesting to see, especially as universities
kick into high gear in recruiting the next big student-athlete. The Department of Education is
responsible for the SAPA’s rules and regulations, but these either haven’t been released or
unavailable online. (If anyone who can point us to it, we will be grateful!)
Does a new spanking new car constitute a reasonable and similar benefit? Arguably, it does if it helps
the student-athlete get to and from training sessions. The counterargument, of course, will be the
application of ejusdem generis, which constricts the interpretation of the provision to the preceding list
of benefits.
(How about hiring hookers and strippers at a recruitment party? Well, that doesn’t seem like a good
idea to begin with.)

End to Commercial Endorsements?

Unlike the US NCAA rules that prohibit student-athletes from signing with agents and procuring
endorsement deals, the Student-Athletes Protection Act is silent on the matter. While some feel these
add to the “commercialization” of these student-athletes, a law that would prohibit student-athletes will
probably run afoul on their right to publicity (i.e. their right to commercially exploit their name, image,
or likeness). Hence, we will continue to see our favorite collegiate basketball and volleyball players on
billboards throughout EDSA and on TV.

Schools and Athletic Associations Beware

The law imposes sanctions for violations not only on the school, its athletic directors, and coaches, but
also on alumni and representatives (presumably of the school). Imposing liability on overstepping
alumni is an interesting effort that recognizes the vital and influential role school alumni play in
recruiting and luring student-athletes. How this provision is actually implemented will be something to
watch in the upcoming years. These sanctions come in the form of fines of up to P1,000,000. The
erring student-athlete doesn’t get off scot-free either. While the student-athlete is not subject to fines,
athletic associations can suspend and even ban an erring student-athlete upon investigation.
For a former-student athlete who itched to play in every single game, that’s probably the worst
punishment of all.
Sullivan v. University Interscholastic League

Petitioner, John Sullivan, through his father and next friend, Joe Sullivan, brought suit individually and as
representative of a class action against the University Interscholastic League, two U.I.L. officials, the Austin
Independent School District, and four named school officials.[1] Sullivan challenged the constitutional
validity of the U.I.L.'s student transfer rule contained in Section 14 Article VIII of the Constitution and
Contest Rules of the University Interscholastic League.[2] Sullivan sought declaratory and injunctive relief
and individually sought damages under 42 U.S.C. § 1983. The trial court dismissed Sullivan's action
against the Austin Independent School District with the parties' acquiescence.

The four named school officials filed a motion presenting two grounds for summary judgment: (1) that the
rule is constitutional, and (2) there is no genuine issue as to any material fact necessary to establish their
affirmative defense of immunity to the damage claim.[3] The U.I.L. and two U.I.L. officials also filed a
motion for summary judgment claiming only that the rule is constitutional. The trial court granted both
motions for summary judgment on all points before it. Sullivan brought four points of error before the court
of civil appeals dealing with the constitutionality of the U.I.L. rule. He did not appeal the trial court's grant of
the affirmative defense of immunity asserted in the school officials' motion for summary judgment. The
court of civil appeals affirmed the judgment of the trial court. 599 S.W.2d 860. We affirm in part and reverse
*172 and remand in part the judgment of the court of civil appeals.

The U.I.L. is a voluntary non-profit association of public schools which is a part of the Division of Continuing
Education of The University of Texas. All public schools are eligible for membership in the U.I.L., and its
conduct has been held to constitute state action. Walsh v. Louisiana High School Athletic Ass'n, 616 F.2d
152 (5th Cir. 1980); Saenz v. University Interscholastic League, 487 F.2d 1026 (5th Cir. 1975). The U.I.L.
promulgated the original transfer rule in 1933, to discourage recruitment of promising athletes. Essentially
this rule provides that a student who has represented a high school (other than his present school) in either
football or basketball is ineligible, for one calendar year after moving to another district, to participate in the
same sport in the school to which he changes.[4] In March 1977, John Sullivan moved with his family from
Vermont to Austin because his father's employment was transferred. John played high school basketball in
Vermont but it is undisputed that he was not recruited to play in the Austin schools. When John enrolled in
school, he was told that he was ineligible to play U.I.L. sponsored varsity basketball because of the one-
year transfer rule.

We granted Sullivan's application for writ of error on three points which are interrelated. First, the transfer
rule is not rationally related to the purpose of deterring recruitment of high school athletes. In other words,
the enforcement of the transfer rule deprives Sullivan of his Fourteenth Amendment right of equal
protection. Second, the rule infringes upon Sullivan's fundamental right of familial privacy. Third, the
transfer rule infringes on his fundamental right to interstate travel. We find it unnecessary to discuss the
right to familial privacy and travel since we hold that the transfer rule is not rationally related to the purpose
of deterring recruitment and therefore the rule violates the equal protection clause of the Fourteenth
Amendment. The demand for equal protection of the laws is directed to the states: "No State shall ... deny
to any person within its jurisdiction the equal protection of the laws." U.S.Const.Amend. XIV, § 1. Equal
protection decisions, however, recognize that a state cannot function without classifying its citizens for
various purposes and treating some differently than others. The general rule is that when the classification
created by the state regulatory scheme neither infringes fundamental rights or interests nor burdens an
inherently suspect class, equal protection analysis requires that the classification be rationally related to a
legitimate state interest. See Parham v. Hughes, 441 U.S. 347, 350-53, 99 S. Ct. 1742, 1745-47, 60 L. Ed.
2d 269 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2516, 49 L. Ed. 2d 511
(1976); United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S. Ct. 2821, 2825, 37 L.
Ed. 2d 782 (1973). We have involved in this case neither a suspect class nor a fundamental right.

The transfer rule creates two classes of students: those who do not transfer from one school to another, as
compared to those who transfer. The rule treats these two classes of students differently by permitting
members of the first group to compete in interscholastic activities without any delay while imposing a one-
year period of ineligibility on the second group. The purpose of the transfer rule was to discourage
recruitment of high school athletes. This is a legitimate state purpose. However, equal protection analysis
still requires us to "reach and determine the question whether the classifications drawn in a statute are
reasonable in light of its purpose." McLaughlin v. Florida, 379 U.S. 184, 191, 85 S. Ct. 283, 288, 13 L. Ed.
2d 222 (1964).
*173 In practical effect, the challenged classification simply does not operate rationally to deter recruitment.
The U.I.L. rule is overbroad and over-inclusive. The rule burdens many high school athletes who were not
recruited and were forced to move when their family moved for employment or other reasons. The fact that
there is no means of rebutting the presumption that all transferring athletes have been recruited illustrates
the capriciousness of the rule. The inclusion of athletes who have legitimately transferred with recruited
athletes does not further the purpose of the transfer rule. Under strict equal protection analysis the
classification must include all those similarly situated with respect to purpose. Rinaldi v. Yeager, 384 U.S.
306, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966). See Developments in the LawEqual Protection, 82 Harv.L.
Rev. 1065, 1084 (1969). It is clear that the transfer rule broadly affects athletes who are not similarly

The U.I.L. has a rule which specifically prohibits recruitment of high school athletes. The transfer rule was
enacted in addition to this specific rule. The over-inclusiveness and the harshness of the transfer rule is not
rationally related to the purpose of preventing recruitment. An exception exists to the transfer rule in regard
to seniors. There is no rational reason why the exception given seniors cannot be extended to others. In
practical operation the transfer rule excludes from participation in varsity athletics the majority of students
who transfer for reasons unrelated to recruitment. The legitimate goal of the transfer rule does not justify
the harsh means of accomplishing this goal utilized by the U.I.L.
We hold that the transfer rule violates the equal protection clause of the Constitution, and Sullivan and his
class are entitled to the injunctive and declaratory relief sought. Because we hold that the transfer rule is
unconstitutional, we find it unnecessary to pass on Sullivan's other points attacking the constitutionality of
the rule. Sullivan did not assign as error before the court of civil appeals or this court the school officials'
affirmative defense of immunity alleged in their motion for summary judgment. We, therefore, affirm that
part of the court of civil appeals' judgment which denies Sullivan damages against the four school officials.
City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77 (1955); Le Jeune v. Gulf States Utilities Co., 410
S.W.2d 44 (Tex.Civ.App.Beaumont 1966, writ ref'd n.r.e.). We reverse that part of the judgment of the court
of civil appeals denying injunctive and declaratory relief and remand the case to the trial court for further
proceedings concerning the unresolved issue of damages as to the two U.I.L. officials, Rhea Williams and
Bailey Marshall, and for rendition of the injunctive and declaratory relief sought consistent with this opinion.
GREENHILL, C. J., concurs in the result.
Indiana High School Athletic Assoc. v. Avant (Validity of transfer restrictions)

During the summer following his junior year in high school, Avant transferred from Andrean High School
(Andrean), a private high school located in Merrillville, to Roosevelt High School (Roosevelt), a public high
school in Gary. Avant's parents did not change their residence; rather, Avant moved from a private school to
a public school located in the same school district. Avant played basketball and baseball at Andrean during
9th grade, 10th grade and 11th grade. In fact, he played on the varsity teams in these sports his junior year,
and he was characterized as an "outstanding" athlete and player. After transferring to Roosevelt, Avant
hoped to continue participating in sports. Both Andrean and Roosevelt are members of the IHSAA and are
subject to the association's athletic eligibility rules. The primary purpose of the IHSAA Transfer Rule is to
eliminate school jumping and recruitment. This rule provides, in substance, that a student who transfers to
a member school with a change of residence by the student's parents will have immediate full (varsity)
eligibility at the new school. However, a transfer without an accompanied move by parents will result in
ineligibility during the first 365 days following transfer, unless the student qualifies under a listed exception.
The rules also provide for limited (junior-varsity) eligibility when a student transfers without a corresponding
change of residence by the parents. On the contrary, a student who transfers for "primarily athletic reasons"
will be ineligible for all athletics for the first 365 days after enrollment at the new school. The IHSAA
Hardship Rule mediates the harsh effects of the eligibility rules in limited situations. Avant completed a
Transfer Report as required by the IHSAA Rules. The IHSAA Executive Committee then held a hearing on
November 12, 1993 to determine Avant's eligibility for interscholastic sports. The committee's written
decision found that Avant was ineligible for varsity athletics during the 1993/1994 school year. Not only did
he fail to qualify for full eligibility under the IHSAA rules, Avant also failed to establish that application of the
Transfer Rule to him constituted an undue hardship. The committee granted Avant limited eligibility to
participate in junior-varsity athletics at Roosevelt.[1]

On December 3, 1993, Avant filed a complaint for injunctive relief and jury demand against the IHSAA and
Roosevelt. The trial court immediately issued a temporary restraining order against the IHSAA and
Roosevelt. After a hearing, the trial court enjoined the IHSAA from preventing Avant from participation on
any varsity athletic team at Roosevelt. The court further ordered that the IHSAA could impose no penalty
on Roosevelt for allowing Avant to participate on its varsity teams, nor could the IHSAA take action against
any school against which Avant played. The trial court found that it could review the IHSAA decision to
determine if it was "arbitrary or capricious," and for violations of Article I § 23 of the Indiana Constitution. In
granting the injunction, the court stated that Avant had shown a likelihood of success on the merits;
however, it failed to identify the claim upon which Avant was likely to succeed. This interlocutory appeal


I. Whether the IHSAA acted arbitrarily or capriciously in granting Avant only limited eligibility. *1167
II. Whether the IHSAA violated Article I § 23 by rendering Avant ineligible to participate in varsity athletics
at Roosevelt.
III. Whether the trial court erred by enjoining the IHSAA from applying its Restitution Rule should the
court's injunction be reversed.


I. Whether the IHSAA Acted Arbitrarily and Capriciously.

The IHSAA next contends that it did not act arbitrarily and capriciously when it denied Avant full eligibility for
interscholastic athletics after he transferred from Andrean to Roosevelt. Avant does not contest the finding
that his actions violated the Transfer Rule, thus rendering him ineligible for varsity athletics. Instead, he
argues that using his technical violation of the rule to disqualify him is arbitrary and capricious since he was
not recruited by Roosevelt and the basis for his decision to transfer was financial and personal hardship
rather than athletics. The motivation behind Avant's transfer to Roosevelt was a factual issue before the
IHSAA. The Court of Appeals will not judge the credibility of witnesses or weigh evidence that was before
the IHSAA on factual issues. Kriss v. Brown (1979), 180 Ind. App. 594, 390 N.E.2d 193, 197. Therefore, we
will affirm the IHSAA's factual determinations if supported by substantial evidence of probative value. Id.
The IHSAA determined that while the evidence was inconclusive to prove Avant's transfer was primarily for
athletic purposes, the evidence sufficiently established athletics as a factor (emphasis in original). The
IHSAA noted that Avant did not mention financial hardship when leaving Andrean or on his Transfer Report.
Moreover, Avant did not follow up on the Andrean athletic director's offer to help Avant secure employment
or available financial aid. Evidence indicated that Avant had disagreements with the Andrean basketball
coach, as he did with all his coaches, and that he "had to put up with" the coaches' philosophy for three
years. Before learning he could not play on the junior-varsity team, Avant's decision to transfer was
attributed to his being unhappy at Andrean.

The IHSAA concluded that Avant did not qualify for relief under the IHSAA Hardship Rule.[5] This rule gives
the IHSAA authority to set aside the effect of any rule when:
a. Strict enforcement of the Rule in the particular case will not serve to accomplish the purpose of
the Rule;
b. The spirit of the Rule has not been violated; and *1169
c. There exists in the particular case circumstances showing an undue hardship which would result
from enforcement of the Rule.

The general consideration section of the hardship rule contains the following language:
Likewise, a change in financial condition of the student or a student's family may be considered a hardship,
however, such conditions or changes in conditions must be permanent, substantial and significantly beyond
the control of the student or the student's family. While the IHSAA noted that attending Andrean did create a
hardship on Avant's family, this financial hardship had existed since Avant's freshman year. Furthermore,
the IHSAA found no change in the family's circumstances which would cause an undue hardship.
Substantial evidence of probative value supported the IHSAA's factual determination that Avant was
ineligible for varsity athletics due to his transfer. The IHSAA's decision was not arbitrary or capricious.

II. Application of Article I § 23.

Because we have affirmed that Art. I § 23 applies to the IHSAA, we must determine whether application of
the Transfer Rule to Avant violated this provision. Our analytical methodology is governed by a recent
decision of the Indiana Supreme Court. On November 28, 1994, the Indiana Supreme Court affirmed the
decision of the full Workers' Compensation Board of Indiana that the statutory agricultural exemption to the
Indiana Workers' Compensation Act did not violate Art. I § 23. Collins v. Day (1994), Ind., 644 N.E.2d 72,
82. In doing so, the court held that claims under Art. I § 23 should be interpreted and applied independently
from federal equal protection analysis. Id. at 75. The court articulated two requirements which must be met
by legislation granting unequal privileges or immunities in order to withstand constitutional scrutiny: (1) the
classification must be based upon distinctive, inherent characteristics which rationally distinguish the
unequally treated class, and the disparate treatment accorded by the legislation must be reasonably related
to such distinguishing characteristics; and (2) the classification must be open to any and all persons who
share the inherent characteristics which distinguish and justify the classification, with the special treatment
accorded to any particular classification extended equally to all such persons. Id. at 79. In applying this two-
part standard, courts must accord considerable deference to the manner in which the legislature has
balanced the competing interests involved. Id. at 79-80.

We first address whether the treatment of transfer students without a corresponding change of residence
by their parents separately from students transferring with a change of residence by their parents is a
classification based upon distinctive, inherent characteristics and, if so, whether the unequal treatment is
reasonably related to such distinguishing characteristics. The Transfer Rule is designed to eliminate school
jumping and recruitment of student athletes. Transfers not accompanied by a change in residence (or
falling outside the thirteen exceptions) are suspect in that they are subject to substantial manipulation. The
Transfer Rule deters unscrupulous students and parents from manufacturing all sorts of reasons for a
transfer, thereby thinly disguising athletically motivated transfers. The distinctions between these
classifications are reasonably related to achieving the IHSAA's purpose in deterring school jumping and
recruitment. Furthermore, we find that the Transfer Rule applies equally to all persons similarly situated. If a
student transferring without a change in residence by his/her parents does not fit one of the thirteen listed
exceptions or qualify as an "undue hardship," then the student is ineligible for varsity athletics. We
conclude that application of the two-part standard reveals no violation of Art. I § 23 in the present case.
The IHSAA's final contention is that the trial court abused its discretion by enjoining the IHSAA from
enforcing its Restitution *1171 Rule. This rule requires restitution in the event that an injunction, which
allowed a student who was ineligible under the rules to participate, is later voluntarily vacated, stayed,
reversed or finally determined to have been unjustified. Restitution may include forfeiture of games, return
of individual or team awards, and return of funds received by schools in a tournament. Avant would have us
uphold the trial court's ruling, arguing that the Restitution Rule is against public policy because it punishes
schools and students for complying with a court order.

We find Avant's argument persuasive. Avant and the member schools relied in good faith on the trial court's
injunction. It would be illogical and manifestly unreasonable to exact penalties upon individuals and schools
as punishment or retribution for their actions in compliance with a court order. Recently, this court held that
a company acting within boundaries and under color of law cannot retroactively be held responsible for
damages based upon a later court order invalidating action of the public service commission of Indiana.
United REMC v. Indiana Michigan Power Company (Ind. App. 1995), 648 N.E.2d 1194. We compared the
situation in United to that in which a statute is found to be unconstitutional:
"`The theory that a law held unconstitutional is no law at all and void abinitio for all purposes, including
retroactive invalidity, runs counter to the hard facts of life. The actual existence of a statute prior to a
determination of invalidity is an operative fact. Because of such de facto existence and reliance upon its
validity, it has practical consequences which cannot be justly ignored. The past cannot always be erased by
a simple judicial decree.’" Id. citing Martin v. Ben Davis Conservancy District (1958), 238 Ind. 502, 510, 153
N.E.2d 125. The same rationale applies and renders the IHSAA's restitution rule manifestly unreasonable.
Therefore, we find no error on the part of the trial court.

We conclude that the trial court erred by enjoining the IHSAA from rendering Avant ineligible to participate
in varsity athletics at Roosevelt. Although the court had jurisdiction to review the IHSAA's decision
concerning Avant's eligibility, the IHSAA did not act arbitrarily or capriciously in granting Avant only limited
eligibility. Moreover, the IHSAA's actions did not constitute a violation of privileges or immunities under the
Indiana Constitution.

Finally, we find the IHSAA's Restitution Rule to be manifestly unreasonable. Thus, the trial court did not err
by prohibiting its enforcement against Avant and member schools.

HOFFMAN and DARDEN, JJ., concur.