CHICAGO – The U.S. Court of Appeals for the Seventh Circuit has upheld a
district court ruling that found that two former University of Pennsylvania
track and field student athletes cannot be classified as employees and entitled
to a minimum wage under the Fair Labor Standards Act.
Former Penn students Gillian Berger and Taylor Henning’s “pay-to-play”
lawsuit named Penn, the National Collegiate Athletic Association (NCAA), and
more than 120 other colleges and universities that are NCAA Division I member
schools as defendants.
The Seventh Circuit issued its decision Dec. 5 after hearing Berger and Henning’s appeal
of a lower court decision granting the defendants’ motion to dismiss the lawsuit.
“The court looked at other cases where an underlying
tangential issue was whether a student athlete was an employee,” Mike D. Wilson Jr. of Ogletree, Deakins, Nash, Smoak & Stewart, PC told the Pennsylvania Record.
Wilson said the court also looked at other cases evaluating a potential
employee-employer relationship, such as in the context of movie studio interns,
prison convicts and other categories of people claiming to be employees, and
determined that it should take a close look at the “true nature of the
relationship” between student athletes and their respective
In defense of their claims that their student-athlete status
made them employees of Penn, Berger and Henning used a precedent set by the
Second Circuit in Glatt
v. Fox Searchlight Pictures, Inc., which classified unpaid student interns
as employees because the companies for which they were interning received the
majority of the benefit of those students’ services.
Berger and Henning said their relationship with Penn fell
into the same category, arguing that their student-athlete status was similar
to the one used for work-study students.
However, instead of relying on the Glatt test for its
ruling, the Seventh Circuit instead turned to the “economic realities” test established
by the U.S. Supreme Court. The Seventh Circuit said Berger and Henning did not
meet the qualifications of employees used in the economic realities test,
citing a “revered tradition of amateurism in college sports.”
In addition, the Seventh Circuit said one role of the NCAA is
to uphold that amateurism through its extensive eligibility rules.
“The Seventh Circuit found that interscholastic athletics
does not constitute ‘work,’ in the sense contemplated by the FLSA,” Wilson
said. “The court also found that student athletes do not have ‘any real expectation
of earning an income,’ because student-athletic ‘play’ is not ‘work.’”
Also, the Seventh Circuit cited the U.S. Department of Labor’s
Field Operations Handbook, which states “[u]niversity or college students who
participate in activities generally recognized as extra-curricular are
generally not considered to be employees within the meaning of the [FLSA].”
Wilson said future cases may revisit the question of whether
student athletes can be classified as employees.
“In these future cases, the student athletes in question will have to be mindful of court precedent on this issue,” he said. “That being
said, in future cases, the student athletes might try to present new arguments,
based on new facts, to explain why should be viewed differently than the former
Penn student athletes in the Seventh Circuit case.”