Brett Gallaway Represents NFL Players and Coaches in Class Action Suit

Law360, New York (November 4, 2016, 5:45 PM EDT) - Players and coaches of an NFL feeder league who claim in a putative Fair Labor Standards Act class action they were paid sub-minimum wages urged a New York federal judge in a letter Friday not to dismiss the suit, saying lawyers for one of the owners can't make arguments on behalf of the league.

The current and former players and coaches told U.S. District Judge Gregory H. Woods that the co-owner, Michael Halem, appeared to make an argument on behalf of the feeder league, FXFL LLC, although the league itself doesn't have legal counsel in the case and is not represented by Halem's counsel

"It is unclear how defendant Halem can make a motion to dismiss the FLSA claims as they pertain to defendant FXFL," plaintiffs' counsel Wade C. Wilkinson of McLaughlin & Stern LLPwrote in the letter to Judge Woods. "Therefore, the FLSA claims cannot be dismissed with respect to defendant FXFL, thus mooting any argument defendant Halem can make regarding this court's jurisdiction."

The letter also argued that even if the owners' claims to a seasonal exemption under the Fair Labor Standards Act were dismissed, their remaining claims would satisfy the Class Action Fairness Act because  the amount in controversy is $5 million or more and the class is sufficiently diverse.

FXFL's owners — Brian Woods, Alan Pace and Michael Halem — asked the judge on Oct. 26 in a letter written by Halem's counsel, Daniel A. Singer, to throw out the suit, arguing their business is seasonal and exempt from federal wage laws.

Although the players and coaches claimed the football league and its owners made them work without pay and failed to reimburse their expenses, the owners claimed the league's two-month season exempts them from the FLSA.

In their complaint, the players and coaches claimed breaches of the FLSA, state wage laws and their contracts, claiming the league failed to pay them for time spent in mandatory practices, time spent traveling to those practices and time spent in game preparation. They also claimed the league breached contractual clauses promising to pay travel and related expenses for away games.

The Oct. 26 letter argued FXFL was exempt from the FLSA because it is a seasonal recreational business, defined as an amusement or recreational business that operates less than seven months of the year. It argued the players' own complaint puts the league's season at no more than eight weeks, including two weeks of training camp.

Without an FLSA claim, the plaintiffs have no standing in federal court and the remaining claims should be dismissed, Halem's letter said.

Players' counsel Brett Gallaway of McLaughlin & Stern told Law360 on Friday that the football season may last only a matter of months, but the league's operations run at least seven months if not year round.

"Even if the court allows the league to make the motion and they win, we still arguably have a breach of contract suit under the Class Action Fairness Act," Gallaway said. "These guys paid out of their own pocket for the privilege of playing in the minor league. We believe that our claims are strong and that the players were taken advantage of. We'll do everything in our power to get them paid what they are owed."

Representatives for Halem and Pace did not immediately respond to requests for comment on Friday.

The players are represented by Wade C. Wilkinson, Brett R. Gallaway and Lee S. Shalov of McLaughlin & Stern LLP.

Michael Halem is represented by Daniel A. Singer of The Law Offices of Daniel A. Singer PLLC.

Alan Pace is represented by Michael Lee Smith of Brewer Attorneys and Counselors.

Brian Woods is pro se.

Counsel information for FXFL LLC was not available.

The case is Kyle Auffray et al. v. FXFL et al., case number 1:15-cv-09379, in the U.S. District Court for the Southern District of New York.

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