## Facts

- Former University of Pennsylvania (Penn) women’s track-and-field athletes sued Penn, the NCAA, and over 120 NCAA Division I member schools.
- Plaintiffs alleged NCAA-regulated student-athletes perform compensable work and therefore are “employees” under the Fair Labor Standards Act (FLSA), entitling them to minimum wages.
- Plaintiffs alleged no personal relationship with, or injury traceable to, any university other than Penn.
- Defendants moved to dismiss for lack of standing and failure to state an FLSA claim.

## Issues

1. Whether plaintiffs had Article III standing to sue NCAA Division I schools other than Penn.
2. Whether NCAA-regulated student-athletes are “employees” of their universities under the FLSA.

## Decision

- The Seventh Circuit affirmed dismissal.
- Plaintiffs lacked Article III standing to sue any school other than Penn because they did not plausibly allege injury traceable to, or redressable by, the other schools.
- As to Penn, the complaint failed to state a claim because student-athletes participating in NCAA-regulated intercollegiate athletics are not employees covered by the FLSA.
- A separate concurrence agreed with the result but cautioned that materially different facts could raise different questions.

## Legal Principles

- Article III standing requires an injury that is fairly traceable to each defendant and likely redressable by a favorable decision; allegations against defendants with whom plaintiffs have no relationship generally fail traceability and redressability.
- A plaintiff seeking FLSA coverage bears the burden to establish “employee” status under the statute.
- Participation in intercollegiate athletics can be treated as an extracurricular educational activity rather than employment for FLSA purposes, including in light of Department of Labor guidance addressing extracurricular/interscholastic student activities.
- The historical treatment of college sports as amateur competition and consistent judicial reluctance to treat student-athletes as employees in related contexts support rejecting FLSA employee status for NCAA student-athletes.

## Conclusion

The court held that former Penn student-athletes could not sue other Division I schools for lack of standing and, as a matter of law, student-athletes in NCAA-regulated intercollegiate athletics are not employees entitled to minimum wages under the FLSA.


Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285 (7th Cir. 2016)