Student Athletes Who Play Collegiate Sports Are NOT Entitled to Minimum Wage Under the FLSA

Berger v. National Collegiate Athletic Association - Seventh Circuit Court of Appeals

Facts:  Gillian Berger ("Berger") and Taylor Hennig ("Hennig") were former students at the University of Pennsylvania ("Penn") and participated in the women's track and filed team.  Berger and Hennig sued Penn, the NCAA, and more than 120 other NCAA Division 1 member schools on the grounds that student athletes are "employees" under the Fair Labor Standards Act ("FLSA") and therefore entitled to a minimum wage.  The District Court granted a motion to dismiss filed by the schools and the NCAA on the grounds that Berger and Hennig lacked standing to sue and no valid claim was stated against Penn because student athletes are not "employees" as defined by the FLSA.

Berger and Hennig subsequently appealed to the Seventh Circuit Court of Appeals.

Holding:  The Court of Appeals first turned to whether Berger and Hennig had standing to sue.  In doing so, the Court looked at the language of the FLSA and noted that alleged employees' "injuries are only traceable to, and redressable by, those who employed them."  Based upon the language of the FLSA, Berger and Hennig could not establish they had standing to sue Penn.  The student athletes attended the school and was deemed "far too tenuous to be considered an employment relationship."  As a result, the Court held standing did not exist.

In regard to whether Berger and Hennig had properly stated a claim on which they could sue, the Court noted the FLSA requires "[e]very employer" to pay "his employees" a minimum wage of $7.25/hour.  As many courts have stated, the Seventh Circuit noted that the FLSA provides an unhelpful definition of "employee", but held that to qualify as an employee for purposes of the FLSA, one must perform "work" for an "employer".  Since the FLSA does not define "work", a plaintiff must show he or she performed work for an employer and is entitled to compensation.

While the Supreme Court has instructed lower courts to adopt an expansive view when defining "employee" and "employer", there are limits.  In this case, several prior rulings from other courts weighed against Berger and Hennig:  In situations such as this, the Supreme Court has held that there exists " a revered tradition of amateurism in college sports." (emphasis added).  In addition, a majority of other courts have concluded (in different contexts, as noted by the Seventh Circuit) that student athletes are not employees.  For instance, other courts have ruled that student athletes are not employees in the workers' compensation context and therefore are not entitled to compensation from their schools for injuries suffered while playing their sports.  As well, the Department of Labor (through its Field Operations Handbook) has indicated student athletes are not employees under the FLSA.

The Seventh Circuit did note that while two courts had reached an opposite conclusion (over fifty years ago), they did so in part because the student athletes in those cases were also separately employed by their universities.  However, those two "stand alone" cases were not sufficient to convince the Seventh Circuit that a student's participation in collegiate sports (which is entirely voluntary) amounted to actual "work".

Judgment:  The Seventh Circuit Court of Appeals affirmed the lower court's decision to dismiss the cause of action on the grounds that the student athletes could not establish that voluntarily playing sports for a college resulted in them being entitled to being classified as "employees" under the FLSA and entitled to minimum wage.

The Takeaway:  This was a fascinating case and well worth an in depth reading of the Court's opinion for those especially interested in the topic.  I cannot say I am surprised by the Court's ruling though.  As set forth in the opinion, there simply was little to no precedent for the student athletes to rely upon.  Given that seemingly most courts had previously held that student athletes are not employees (and therefore not entitled to the protections afforded to employees, such as the requirement that they be paid minimum wage under the FLSA) coupled with the fact that the Department of Labor did not view student athletes as employees, is what likely ultimately doomed the case.  

That is not to say that this will always be the case.  Should the language of the FLSA be amended to include student athletes within the definition of "employee", or the Supreme Court create new precedent, cases such as this might reach a different conclusion.  However, for the time being, student athletes simply have little to no recourse in their fight to get minimum wage for playing collegiate sports.

Majority Opinion Judge:  Judge Kanne

Date:  December 5, 2016

Opinion:  hr.cch.com/eld/BergerNCAA120516.pdf