Berger v. NCAA

Gillian Berger (plaintiff) and Taylor Hennig were University of Pennsylvania (Penn) students who competed on Penn’s women’s track-and-field team. Berger and Hennig filed suit against the National Collegiate Athletic Association (NCAA) (defendant), Penn, and the other NCAA Division I schools because student-athletes are employees. Under the Fair Labor Standards Act (FLSA), the schools would then have to pay the athletes a minimum wage. At the trial court level, the NCAA moved to dismiss the suit because Berger and Hennig lacked standing, and student-athletes are not employees under the FLSA. The trial court granted the motions, and Berger and Hennig then appealed. Regarding standing, the student-athletes lacked any arguable relationship with any university other than Penn. On the more complex issue of employee status, the FLSA circularly defined an employee as an individual employed by an employer. The putative employee bore the burden of establishing status as an employee. The term was generally construed expansively, and Berger and Hennig argued for applying factor tests to determine employee status. Meanwhile, the Field Operations Handbook of the Department of Labor, although not determinative, exempted students who participated in activities generally recognized as extracurricular from employee status. Berger and Hennig argued that this should be applied to club or intramural sports but not to NCAA competitions. The NCAA largely relied on the lengthy and well-known history of athletic amateurism, over which the NCAA had been a guardian for decades.