Pennsylvania Record

Sunday, April 5, 2020

Seventh Circuit rules against Univ. of Penn student athletes seeking pay

By Carrie Salls | Dec 16, 2016

Law money 05

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 universities/colleges.


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.”

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Organizations in this Story

Ogletree, Deakins, Nash, Smoak and Stewart, P.C.U.S. Court of Appeals for the Seventh Circuit