17.1.7.9.6; 17.1.7.9.7; and 17.1.8 (Adopted: 1/20/17 effective 8/1/17).   27.  Livers brings this action for unpaid minimum wages on his own behalf and on  behalf of all recipients of athletic scholarships under Athletic Financial Aid Agreements  requiring them to participate in NCAA athletics at private and semi-public NCAA Division I  member schools3 at any time within the statute of limitations and through the date of the  final judgment, or of resolution of any appeal therefrom (the “Scholarship Athlete Collective”).     28.  NCAA bylaws are adopted through a legislative process by member schools,  and are uniformly interpreted and applied by member schools to insure a “level playing field”  under threat of competition and financial penalties issued by the NCAA for failure to comply.   30.  For reasons set forth in Paragraphs 146 through 174, infra, NCAA bylaws  that subject all members of the Scholarship Athlete Collective to the same terms and  conditions of unpaid labor also establish their joint employment by defendants.   31.  By operation and enforcement of NCAA bylaws, all members of the  Scholarship Athlete Collective have suffered similar injuries and sustained similar damages.   32.  The Scholarship Athlete Collective consists of many similarly situated  persons who have not been paid minimum wages by the defendants in violation of the FLSA  and who would benefit from the issuance of a court-supervised notice of this action and the  opportunity to join.  Those similarly situated collective members are known to defendants,  are readily identifiable, and can be located through the defendants’ records.  Notice should  be sent to members of the Scholarship Athlete Collective pursuant to 29 U.S.C. § 216(b).  33.  The 20 NCAA Division I member schools named in this Complaint are  individually and collectively representative of a defendant class of private and semi-public  NCAA Division I member schools that entered/enter into Athletic Financial Aid Agreements  with members of the Scholarship Athlete Collective requiring their participation in   NCAA athletics.   34.  The remaining members of the proposed defendant class are identified in   Ex. C incorporated herein as though fully set forth.4   36.  The remaining members of the proposed defendant class are numerous – 97 – and geographically dispersed throughout the nation as far North as Vermont, as far South  as Florida, as far West as California, and nearly every state in between.  Fed. R. Civ. P.  23(a)(1).    37.  For reasons set forth in Paragraphs 28 through 31, supra, questions of law  and fact are common.  Fed. R. Civ. P. 23(a)(2).   38.  In Berger v. NCAA et al., No. 1:14-CV-1710 (S.D. Ind. Mar. 18, 2015) filed on  behalf of a broader collective including “walk-ons” not on athletic scholarship, the defendants  included 115 members of the proposed defendant class here, plus eight members of the   Ivy League which do not offer athletic scholarships.  The NCAA and 123 member schools  mounted a joint defense; one law firm represented the NCAA and 90 member schools, and  another law firm represented 30 member schools.   39.  For reasons set forth in Paragraphs 28 through 31, and 38, supra, the  defenses of the 20 NCAA Division I member schools named in this Complaint are typical of  the defenses of the proposed defendant class.  Fed. R. Civ. P. 23(a)(3).   40.  The NCAA is the association, representative legislative body, and lobby arm  of the more than 1,200 NCAA member conferences and schools.   42.  For reasons set forth in Paragraphs 28 through 31, 38 and 40 through 41,  supra, the NCAA and 20 NCAA Division I member schools named in this Complaint will  fairly and adequately protect the interests of the proposed defendant class.  Fed. R. Civ. P.  23(a)(4).   44.  Livers incorporates by reference the allegations contained in Paragraphs 1  through 43, supra, as though fully set forth.   45.  Scholarship Athletes enter into Athletic Financial Aid Agreements that are  similar in substance to the NCAA sample form agreement on NCAA.org at  https://www.ncaa.org/sites/default/files/FinAidForm_0.pdf, attached hereto as Ex. D, and/or  subject to NCAA Division I Bylaws Article 15.  Financial Aid.  Academic and Athletic Scholarships Are Not Compensation   46.  Both academic and athletic scholarships are grants-in-aid designed to assist  academically eligible students and/or their families in defraying costs of attendance.   47.  If, and to the extent, an academic or athletic scholarship were to “represent[]  payment for teaching, research, or other services required as a condition for receiving the  scholarship,” the scholarship would be taxable income.  See U.S. Department of Treasury,  Internal Revenue Service.  Tax Benefits for Education.  IRS Pub. 970. (2016) Chapter 1.   Scholarships, Fellowship Grants, Grants, and Tuition Reductions, at 5, 8.   48.  But both academic and athletic scholarships are not taxable income as  applied to qualified education expenses required for enrollment and attendance, e.g., tuition  and fees, and books.  Id. at 4-5.   50.  The NCAA and member schools have asserted and/or admitted that an   athletic scholarship is not compensation to prepare for and/or participate in NCAA athletics  in legal proceedings under the National Labor Relations Act, 29 U.S.C.§§ 151 et seq., (“NLRA”)  see, e.g., In re: Northwestern Univ. and College Athletes Players Ass’n, Case No. 13-RC-121359  (NLRB), and under the Sherman and Clayton Antitrust Acts, 15 U.S.C. §§ 1-7, 12-27, see, e.g.,  In re: NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 4:14-md-02541 (N.D. Cal.).  By Comparison to Academic Scholarships, Athletic Scholarships   Impose Additional, and Unparalleled, Obligations and Limitations   on Scholarship Athletes   51.  Both athletic and academic scholarships require recipients to meet and  maintain academic eligibility standards.   52.  But athletic scholarships impose additional, and unparalleled, obligations  and limitations on Scholarship Athletes, including but not limited to those set forth in  Paragraphs 53 through 87, and 146 through 174, infra.  Scholarship Athletes Are Obligated to Participate in NCAA Athletics  That Interfere With, Rather Than Facilitate, Academic Studies   53.  An athletic scholarship obligates a Scholarship Athlete to participate in  NCAA athletics as directed, and controlled, by coaching and training staff, athletics  department personnel, and NCAA compliance officers employed by member schools for the  express and full-time purpose of supervising Scholarship Athletes (hereinafter, collectively  “NCAA athletics supervisory staff”).   55.  The NCAA and member schools admit that “time required of student athletes  for participation in intercollegiate athletics [must] be regulated to minimize interference  with their opportunities for acquiring a quality education in a manner consistent with that  afforded the general student body.” NCAA Division I Constitution Article 2.14.   56.  The NCAA and member schools purport to regulate athletic participation to  minimize interference with academic studies through NCAA bylaws: (i) limiting class time  missed; (ii) limiting hours of athletic activities supervised by coaching staff to 20 hours per  week in playing and practice season and 8 hours per week in off-season; and (iii) requiring  NCAA athletics supervisory staff to record the hours of athletic participation on timesheets  the same as work study supervisors are required to record the hours of student employment.   NCAA Division I Bylaws 17.1.7.1; 17.1.7.2; 17.1.7.3.4; 17.1.7.9.1; and 17.1.7.9.2; also see, e.g.,  U.S. Department of Education, 2017-2018 Federal Student Aid Handbook, 6-43, 6-46, 6-48  (regarding similar work study guidelines to minimize interference with academic studies).   58.  Student athlete time commitment findings in the 2015 NCAA GOALS Study  are consistent with former Northwestern University quarterback Theodis Kain Colter’s  testimony in In re Northwestern Univ. and College Athletes Players Ass’n, Case No.   13-RC-121359, NLRB Transcript, Feb. 18, 2014 (“Colter Test.”) on NLRB.gov at  http://apps.nlrb.gov/link/document.aspx/09031d4581603b6a:  Everything that we do is scheduled around football, what  classes we can take, what major you could really participate in.   It’s all depending on football and your schedule ….  *****  Due to the time demands, you can’t ever reach your academic  potential.  You’re merely just surviving.  There’s so much time  demand towards football and being a great football player that  you have to sacrifice one, and we’re not allowed to sacrifice  football.  So ….  See Colter Test. 166:14-170:19.   61.  In response to student athlete time commitment findings in the 2015 NCAA  GOALS Study, the “Power Five,” i.e., Atlantic Coast, Big 12, Big Ten, Pacific-12 and  Southeastern conferences, approved measures during the 2017 NCAA Convention aimed at  helping student athletes have more discretionary time starting the 2017-18 academic year,  including: (i) requiring annual time management plans for each sport; (ii) prohibiting  athletically related activities during a continuous 8 hour period between 9 p.m. and 6 a.m.;  and (iii) requiring a 7 day break after a season and 14 more days off during the academic year.   Other NCAA Division I member conferences and/or schools can decide individually whether  to adopt these proposals.  See Michelle Brutlag Hosick, “DI student-athletes to have more  time away from sports,” NCAA.org, Jan. 20, 2017; NCAA Division I Bylaws 17.1.7.8;   62.  Regarding the student athlete discretionary time measures referenced in  Paragraph 61, supra, NCAA Convention attendee and former Oklahoma offensive lineman  Ty Darlington remarked: “Coaches need to understand that student-athletes aren’t  on call at all times.”  Brutlag Hosick, “DI student-athletes to have more time away from  sports.”  (emphasis supplied)   64.  Scholarship Athletes are neither paid for participation in NCAA athletics   nor paid for performing the operational activities in the athletics department referenced in  Paragraph 63, supra.    65.  By contrast to Scholarship Athletes, academic scholarship recipients  participating in work study programs are paid on a minimum wage scale for supplementing  operational activities in campus departments and offices, libraries, dining halls, facilities  and stores.   66.  In fact, through work study, academic scholarship recipients can be, and are,  paid minimum wages for performing operational activities in the athletics department and/or  at NCAA contests, e.g., student ticket takers, seating attendants and food concession workers.   67.  Furthermore, because Scholarship Athletes are additionally obligated to  participate in arduous and time-consuming NCAA athletics, see, e.g., Paragraphs 52 through  63, supra, Scholarship Athletes do not have “free time,” that academic scholarship recipients  have, to apply for, and accept, work study positions in order to earn fungible pay that can be  spent on living expenses not covered by academic or athletic scholarships.  See Paragraph 48,  supra.     69.  If a Scholarship Athlete attempts to earn fungible pay that can be spent on  living expenses not covered by his/her scholarship, or to obtain a discount on living expenses,  by “trading” on his/her athletics reputation, he/she runs afoul of NCAA bylaws prohibiting  compensation and faces suspension or termination of eligibility.  See, e.g., NCAA Division I  Bylaws 12.1.2.1.6, 12.4.1.1 and 12.4.2.3; also suspensions of former Georgia running back  Todd Gurley (four games for accepting $3,000 to autograph memorabilia over two years;  Mark Schlabach, “NCAA denies UGA’s Gurley appeal,” ESPN.com, Oct. 30, 2014) and   former Ohio State quarterback Terrelle Pryor (five games for selling $2,500 in memorabilia,  and accepting discounts from a tattoo parlor; “Ohio State football players sanctioned,”  ESPN.com, Dec. 26, 2010).  Scholarship Athletes Are Subject to Far Stricter Discretionary Control  of Student Performance and Conduct by College Supervisory Staff   70.  The NCAA imposes strict annual limits on the total number and value  (equivalencies) of athletic scholarships per sport.  See NCAA Division I Bylaw 15.5.     73.  NCAA athletic scholarship limitations are by academic year, not academic  classification, meaning a freshman, sophomore or junior Scholarship Athlete could see  his/her scholarship reduced or cancelled for the coming academic year to make scholarship  “cap room” for an incoming freshman or college transfer.   74.  In fact, most athletic scholarships are “given initially for up to one year” and  “can be renewed, reduced, increased or canceled from year to year for almost any reason”  by NCAA athletics supervisory staff.  See Financial Aid Information on NCAA.org at  http://fs.ncaa.org/Docs/eligibility_center/Athletics_Information/FinancialAid.pdf   (emphasis supplied), attached hereto as Ex. E; also Scholarships on NCAA.org at  http://www.ncaa.org/student-athletes/future/scholarships.   75.  By contrast to athletic scholarships, most, if not all, academic scholarships  are allotted by academic classification, meaning a recipient retains the scholarship through  graduation so long as he/she continues to meet and maintain academic eligibility standards,  alone, and a recipient is not subjected to arbitrary reduction or cancellation from year to year.   76.  Both academic and athletic scholarships can be cancelled early if the  recipient becomes academically ineligible, engages in fraud or serious misconduct, or  withdraws from the program to which the scholarship applies.   78.  By operation of the Athletic Financial Aid Agreement, and/or similar  obligations and limitations imposed on Scholarship Athletes under NCAA bylaws,   NCAA athletics supervisory staff exercise extraordinary discretionary control over  required participation in NCAA athletics under threat of athletic scholarship  reduction or cancellation for failure to submit to their discretionary control.   79.  By operation of the Athletic Financial Aid Agreement, and/or similar  obligations and limitations imposed on Scholarship Athletes under NCAA bylaws,   NCAA athletics supervisory staff also exercise extraordinary discretionary control over  personal, and otherwise permissible, conduct under threat of athletic scholarship  reduction or cancellation for failure to submit to their discretionary control.   81.  Colter further testified that failure to submit to discretionary control of  NCAA athletics supervisory staff could result in sanctions, including, but not limited to,  “’public or private reprimands, suspension from practice or competition, dismissal from the  program, and loss of athletic aid if applicable.’”  Id. at 164:15-165:14.   82.  In a subsequent inquiry into Northwestern athletics department policies,   the NLRB concluded that limitations on student athlete speech and use of social networks  and media, referenced by Colter, constituted unfair labor practices.  The NLRB did not  issue a complaint because Northwestern modified, or rescinded, the unlawful policies and  sent student athletes notice setting forth the rights of employees under the NLRA.  See  NLRB Advice Memo Re: Northwestern University, Case 13-CA-157467, Sept. 22, 2016,  attached hereto as Ex. F; also Lester Munson, “Free to Tweet: Northwestern’s restrictions  on football players ruled unlawful,” ESPN.com, Oct. 10, 2016, attached hereto as Ex. G.   83.  For reasons set forth in Paragraphs 52 through 82, supra, Scholarship Athletes  are subject to far stricter discretionary control of student performance and conduct by   college supervisory staff than academic scholarship recipients.  Scholarship Athletes Are Subject to Far Stricter Discretionary Control  of Student Options to Transfer by College Supervisory Staff   84.  If a Scholarship Athlete desires to transfer, he/she may be blocked from  receiving an athletic scholarship to attend his/her transfer college of choice. NCAA Division I  Bylaws 13.1.1.3 and 14.5.5.  If a Scholarship Athlete does transfer, he/she ordinarily cannot  participate in NCAA athletics for a full academic year. NCAA Division I Bylaw 14.5.5.1.   87.  In contrast to Scholarship Athletes, no other student desiring to transfer   may be blocked from receiving any scholarship, or from participating in any programs, at  his/her transfer college of choice.  Under the FLSA, Scholarship Athletes Are Employees As Much As, and  Arguably More Than, Students Employed by NCAA Member Schools in  Work Study Programs   88.  Similar to students employed in work study programs, Scholarship Athletes’  performance outside the classroom is: (i) non-academic in nature; (ii) unrelated/irrelevant to  an academic degree program; (iii) not for academic credit; and (iv) supposed to be restricted  to 20 hours per week, recorded on timesheets maintained by college supervisory staff, to  limit interference with academic studies.  See, e.g., Paragraphs 55 and 56, supra, and   U.S. Department of Education, 2017-2018 Federal Student Aid Handbook, 6-43, 6-46, 6-48.   90.  Similar to students employed in work study programs, Scholarship Athletes’  performance primarily benefits the NCAA member school, and provides no comparable  academic or learning benefit to the student.   91.  For example, NCAA member schools rely upon students employed in   work study programs to supplement operational activities in campus departments and  offices, libraries, dining halls, facilities and stores.   92.  By contrast to students employed in work study programs supplementing  operational activities, NCAA member school reliance upon Scholarship Athletes in the  business of sports is near total as it is Scholarship Athletes’ performance that is marketed  and sold to consumers as a sports product.   93.  In addition, as set forth in Paragraphs 102 through 126, infra, revenue  generated by NCAA athletics, and benefits from NCAA athletics exposure and promotion  that can increase prospective student applications and help fundraising at member schools,  far exceed any revenue generated by, or benefits related to, work study programs.    95.  In contrast to Scholarship Athletes and students in work study programs,  members of student-run groups – e.g., dramatics, publications, glee clubs, bands, choirs,  debate, radio stations, intramural sports, and interscholastic club sports – are not employees  of NCAA member schools for reasons set forth in Paragraphs 96 through 101, infra.   96.  NCAA member schools exercise insufficient control over student-run groups  to create an employer-employee relationship because, by definition, students are solely or  principally responsible for student-run group leadership, organization and decision-making.   If there is any faculty involvement – and in most student-run groups there is none – it is in  an advisory capacity, not supervisory, and is an off- or extra-duty, not a full-time duty.   97.  In contrast to NCAA athletics and work study programs, hours of participation  in student-run groups are not recorded on timesheets maintained by supervising staff of the  NCAA member school.   98.  For reasons set forth in Paragraphs 52 through 87, and 96 through 97, supra,  and 146 through 174, infra, Scholarship Athletes are subject to far stricter discretionary  control of student performance and conduct by college supervisory staff than members of  student-run groups.   THE SCHOLARSHIP ATHLETE COLLECTIVE  