Less than a week after the National Collegiate Athletic Association announced it would consider allowing players to profit off their names and likenesses, an ex-Villanova University football player filed a class action lawsuit in Pennsylvania federal court, seeking back pay for the time he spent as a Division I athlete.

The NCAA's announcement came in the wake of legislation that California Gov. Gavin Newsom signed into law in late September, and represented a major shift in the way the Indiana-based athletic organization had previously considered the issue.

Given the timing, the class action lawsuit seemed to build off the momentum of the California law and the widening cracks in the NCAA's hardline stance, but according to the attorney who filed the case, the timing was somewhat coincidental and the case does not aim to build off the recent national developments, but rather it aims to leverage recent legal precedents that have been developing in the U.S. Court of Appeals for the Third Circuit.

"We were working to get the thing together," before the announcement, Philadelphia attorney Paul McDonald, who filed the class action, said. "I was surprised and shocked when the board took up the position they took, I'm used to them taking the … position of fighting it at every turn."

On Nov. 6, McDonald filed a 104-page complaint on behalf of Ralph "Trey" Johnson, who played for Villanova until November 2017. The lawsuit, which was filed in the U.S. District Court for the Eastern District of Pennsylvania, raises claims under the federal Fair Labor Standards Act, as well as the Pennsylvania Minimum Wage Act, and seeks to establish a class of Division I players seeking back pay for their time as a collegiate athlete.

The lawsuit likens student athletes to those who do work-study programs, and argues that the players must be treated the same.

The suit specifically names 22 schools, all located in either Pennsylvania, New Jersey or Delaware. The defendants include several universities with high-profile sports teams, including Penn State, Rutgers and Seton Hall University. McDonald said that, although they are all Division I, they also represent "every constituency" of the NCAA schools in terms of their public versus private ownership structure, and that is key to understanding why the cases were filed here.

The Third Circuit has limited the immunity afforded public and state-related universities such as Rutgers and Penn State, allowing room for the litigation to move forward, said the attorney who filed the class action.

According to McDonald, the Third Circuit is somewhat unique in that it does not grant full immunity to semi-public entities, such as Penn State or Rutgers. Specifically, he said, courts in the circuit do not grant immunity if the organization gets funding through private sources. So, if the case was brought outside the Third Circuit, immunity would likely become another hurdle the plaintiffs would have to fight through.

"The Third Circuit, good on them, they made the clear distinction that if you raise money from private sources, you're not going to get automatic immunity," McDonald said.

Including a variety of private and semi-public schools as defendants also allowed McDonald to include a list of more than 100 schools across the country that could be brought into the case as possible class defendants. Those schools span from Baylor University in Waco, Texas, to Georgetown University in Washington, D.C.

Whether or not the base of defendants gets expanded, McDonald said, will ultimately be up to the court. But if that happens, plaintiffs from venues with more stringent immunity could still seek to bring their claims through Johnson's class action, he said.

When it comes to the substance of the case, the lawsuit's claims build off another lawsuit that McDonald filed in 2017 on behalf of a former Villanova athlete. That case was Livers v. NCAA, and it was filed on behalf of Lawrence "Poppy" Livers, who was a wide receiver for the school's team.

Livers made similar arguments likening NCAA players to work-study students, but the parties agreed to dismiss it in April. According to McDonald, that's because counsel for the NCAA testified that they relied on guidance from the Department of Labor in deciding against paying players, and therefore the decision couldn't be considered willful. The typical statute of limitations would run after two years, but if a plaintiff can show that the conduct is willful, the plaintiffs have an additional year to sue. However, based on the testimony, Livers' suit would have been filed outside the two-year window, so that's when, according to McDonald, they agreed to dismiss the case.

However, according to McDonald, Livers was successful in barring a key defense that the NCAA used to block several prior cases. The NCAA's argument was that it should not be subject to a multifactor test to evaluate their employment relationship. The argument relied on Vanskike v. Peters, a 1992 case from the Seventh Circuit dealing with a prisoner assigned to work for the Department of Corrections. The prisoner's claims were denied based on the 13th Amendment.

In a ruling from May 2018, Eastern District Judge Michael Baylson determined that Vanskike was not controlling to the wage claims against the NCAA. Instead, the ruling cited tests outlined in Donovan v. DialAmerica Marketing and Glatt v. Fox Searchlight Pictures.

All of that should provide helpful guidance for Johnson's case, McDonald said.

"Livers established that, 'No, the tests apply to you too.' They apply to everyone except prisons," McDonald said. "You do either the Glatt test, or Donovan, and it's pretty obvious what the results are. They meet the criterial more than the work-study students."

Players so far have not had a good track record going up against the NCAA. But McDonald said he is hopeful for the Johnson case because, while some of the prior cases sought to have courts find the players to be semi-professionals, or sought deep pockets from the conference's TV revenues, his case is much more straightforward in that it simply seeks to have the athletes treated like any student who takes part in a work-study program.

"The point of our cases is that these kids deserve to be paid," he said. "We don't want them to be treated better, or worse. Just the same."