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Seventh Circuit Says Student Athletes Are Not Employees

Two female track athletes at the University of Pennsylvania sued the university as well as the NCAA and 120 other colleges. They argued that student athletes should be considered employees under the Fair Labor Standards Act (FLSA), and as such, should receive minimum wage for their hours spent on track and field activities.

Previously, the National Labor Relations Board (NLRB) had ruled that these athletes should be treated as employees. In reviewing the case, the Seventh Circuit Court of Appeals disagreed with the NLRB. In its opinion, the circuit court found that student athletes are definitively not employees. To reach its decision, the court looked to the NCAA’s “revered tradition of amateurism in college sports” and the Department of Labor’s Field Operations Handbook that excluded student athletes’ activities as work because it was an extracurricular activity offered by the school to enhance the educational experience. “Simply put, student-athletic ‘play’ is not ‘work,” at least as the term is used in the FLSA. Use of the “economic realities” test relied upon to determine whether interns are employees under FLSA was rejected by the court as not useful in this context.

A concurring opinion may leave the door open for possible but limited compensation situations in the future. In that opinion, the judge suggested that he was “less confident” that the ruling would apply to “students who receive athletic scholarships to participate in so-called revenue sports like Division I men’s basketball and FBS football.” As track was not a revenue generating sport and University of Pennsylvania did not provide athletic scholarships, that exception was irrelevant here.