From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
Dec. 6 — College student-athletes lost a bid to be deemed employees who should be paid for their efforts ( Berger v. Nat’l Collegiate Athletic Ass’n , 2016 BL 403507, 7th Cir., No. 16-1558, 12/5/16 ).
“This was the first time that we’re aware of where the allegation is employee status under the Fair Labor Standards Act,” said Paul DeCamp, an attorney who argued the case on behalf of the universities. The Dec. 5 decision by the U.S. Court of Appeals for the Seventh Circuit shows that the “economic reality” of “the relationship is one of school and student, not one of employer and employee,” DeCamp said.
Former University of Pennsylvania athletes Gillian Berger and Taylor Hennig’s participation in the track and field team isn’t “work” that entitles them to wages under the Fair Labor Standards Act because they did it voluntarily for purposes other than compensation, Judge Michael S. Kanne wrote for the court.
The students also named the National Collegiate Athletic Association and 120 member institutions in their lawsuit, but their connection to those bodies “is far too tenuous to be considered an employment relationship,” Kanne said, affirming a lower court’s dismissal.
The ruling follows other unsuccessful efforts to establish employee rights for student-athletes based on labor and antitrust laws. In August 2015, the National Labor Relations Board dismissed a union-backed effort to hold an election to organize football players at Northwestern University without ruling on whether they’re employees. The U.S. Court of Appeals for the Ninth Circuit said in a September 2015 ruling that the NCAA didn’t fix prices when it established limits on stipends colleges may pay athletes to cover attendance costs.
“One of the key tests that you look at under the Fair Labor Standards Act to figure out whether there’s employment is whether there’s an expectation of compensation,” DeCamp said. It’s not the only consideration but it makes it harder to consider someone an employee “if this relationship is not in any sense understood to be the provider of somebody’s livelihood,” he said.
Kanne said “the long tradition of amateurism in college sports” shows that students don’t participate in order to produce income.
The NCAA’s chief legal officer, Donald Remy, echoed this sentiment. “Student-athletes spend time practicing and competing to be their best, not as employees, but in the pursuit of their own excellence, to learn leadership through sports, and in the spirit of amateurism,” he said in a statement provided to Bloomberg BNA Dec. 6.
Stephen MacCarthy, Penn’s vice president, university communications, told Bloomberg BNA the same day that questions about the case should be directed to the association because “it’s really an NCAA case.”
The court relied on “an employer-defined amateurism rule” that is “neither defined in the FLSA nor codified in law,” Paul McDonald, the athletes' attorney, told Bloomberg BNA in an e-mail Dec. 6. Employers could wrongly rely on tradition in other contexts, such as unpaid interns, for refusing to pay workers who should be compensated, he said.
The multifactor test the U.S. Court of Appeals for the Second Circuit developed for determining whether interns should be considered employees entitled to pay is better suited for evaluating trainees’ entitlement to pay, Kanne said. The factors that test uses “fail to capture the nature of the relationship between the Plaintiffs, as student athletes, and Penn,” he said, quoting the lower court’s reasoning for turning away from the analysis. Judge Diane S. Sykes joined the opinion.
Mark Rifkin, the attorney representing former University of Southern California linebacker Lamar Dawson in a separate FLSA lawsuit, said he’s energized by the ruling’s potential effect on his case. “Women’s track and field at Penn is a very different relationship than men’s football at USC,” Rifkin, a partner at Wolf Haldenstein Adler Freeman & Herz LLP in New York City, told Bloomberg BNA Dec. 6.
“If you look at the economic nature of the relationship for Division I Football Bowl Subdivision players, it’s a business relationship,” Rifkin said. The court majority opinion’s emphasis on the economic reality of the relationship between students and their schools is encouraging, as is Judge David F. Hamilton’s concurring opinion that students who participate in “so-called revenue sports like Division I men’s basketball and FBS football” are likely to have a different economic reality, he said.
Rifkin said he wished the Seventh Circuit had concluded the Penn athletes were entitled to wages. But “Judge Hamilton’s concurring opinion says exactly what we want the court to say in our case,” he told Bloomberg BNA.
McDonald is a partner at P L McDonald Law LLC in Philadelphia. DeCamp is a principal in the Washington, D.C., Region office of Jackson Lewis PC Daniel Volchok, a partner in Wilmer Cutler Pickering Hale and Dorr LLP’s Washington, D.C., office argued for the NCAA.
To contact the reporter on this story: Jon Steingart in Washington at email@example.com
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Gillian_Berger_et_al_v_NCAA_et_al_Docket_No_1601558_7th_Cir_Mar_1.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)