Penn Athletes Seek Instant Replay in NCAA Fight for Pay

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...

By Jon Steingart

College student-athletes will ask a full appeals court Dec. 16 to rehear a case in which a three-judge panel determined they aren’t employees and thus aren't entitled to be paid, the students’ attorney told Bloomberg BNA Dec. 15 ( Berger v. Nat’l Collegiate Athletic Ass’n , 7th Cir., No. 16-1558, petition 12/16/16 ).

The bid 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 National Collegiate Athletic Association didn’t fix prices when it established limits on stipends colleges may pay athletes to cover attendance costs.

The lawsuit was brought by former University of Pennsylvania track and field athletes Gillian Berger and Taylor Hennig. A lower court dismissed the case before discovery. A Seventh Circuit panel upheld the dismissal Dec. 5, relying on precedent from which it concluded the “long tradition of amateurism in college sports” demonstrates the “economic reality” of the relationship between the students and the university.

But those cases ended after some discovery had been completed, which differs from the Penn athletes’ case. Attorney Paul McDonald of Philadelphia, in a petition he provided to Bloomberg BNA Dec. 15, said it’s wrong to use that precedent to grant a motion to dismiss before the parties have shared evidence.

En Banc Rehearing Rarely Granted

En banc rehearing is rare, Paul DeCamp, an attorney who argued the case for several other universities named in the lawsuit, told Bloomberg BNA Dec. 15 in an e-mail. “It comes up most often when a panel’s ruling conflicts with another precedential decision from the same court. That does not seem to be the case with the student-athlete litigation, as the court relied on and followed its existing FLSA economic realities precedents,” he said.

En banc review also may be granted “where a panel issues a sharply divided ruling,” DeCamp said. In the panel’s ruling, one judge wrote a concurring opinion that said participants “in so-called revenue sports” such as football or basketball might have a claim because they face a different economic reality than track and field.

DeCamp thought that wasn’t enough. “Judge Hamilton wrote a separate concurring opinion but also joined in the majority’s decision, and he agreed that the plaintiffs’ complaint failed to allege a viable claim. Thus, this case lacks that sort of deep divide that can sometimes prompt en banc consideration,” he said.

To contact the reporter on this story: Jon Steingart in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at

For More Information

The petition is available at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law