United States: Court Rules That Student-Athletes Are Not Employees Under the FLSA

David Santeusanio, is a Partner in our Boston office; Vernon M. Strickland is an Associate in our Atlanta office


  • The U.S. District Court for the Southern District of Indiana, in concluding that student-athletes at the University of Pennsylvania (Penn) are not employees under the Fair Labor Standards Act (FLSA), has dealt another blow to legal arguments that student-athletes should be paid as employees, dismissing a complaint against the National Collegiate Athletic Association (NCAA) and 123 member schools.
  • The putative class action was brought by three individuals who are or were members of the women's track and field team at Penn.
  • The decision is particularly helpful to the NCAA and colleges because the court expressly recognized the principle of amateurism in college sports.

In another blow to legal arguments that student-athletes should be paid as employees, the U.S. District Court for the Southern District of Indiana recently concluded that student-athletes at the University of Pennsylvania (Penn) are not employees under the Fair Labor Standards Act (FLSA).

Background and Decision Highlights

The court in Gillian Berger, et al, v. National Collegiate Athletic Association, et al, 1:14-cv-01710-WTL-MJD (S.D. Ind.) dismissed a complaint by Penn student-athletes against the National Collegiate Athletic Association (NCAA) and 123 NCAA member schools. The court dismissed without prejudice the claims against the NCAA and all of the other defendants for lack of subject matter jurisdiction, concluding that the plaintiffs could not plausibly suggest that they have standing to sue any entity other than Penn as their purported employer. The court also held that, as a matter of law, the plaintiffs' participation in an NCAA athletic team at Penn does not make them employees of Penn for FLSA purposes. The court, therefore, dismissed with prejudice the claims against Penn.

The putative class action was brought by three individuals who are or were members of the women's track and field team at Penn. They did not receive, and were not eligible for, athletic scholarships because Penn and Ivy League schools do not offer athletic scholarships. The student-athletes argued that they were employees under the FLSA and therefore were entitled to at least the federal minimum wage for all hours spent performing as a student-athlete.

The student-athletes argued that the 2010 U.S. Department of Labor's "Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act" (Intern Fact Sheet) – setting forth a test and criteria to determine whether interns are employees – should be applied to determine whether student-athletes are employees. The court analyzed the Intern Fact Sheet, the U.S. Supreme Court opinion in Walling v. Portland Terminal Co., 330 U.S. 148 (1947), and more recent opinions from appellate courts. The court concluded that: 1) the Intern Fact Sheet is not intended to apply to student-athletes, 2) the courts have determined that the Intern Fact Sheet, though perhaps persuasive in some instances, did not apply to all interns in all situations, and 3) there is no test that applies equally to interns and student-athletes.

The court reasoned that the test for determining who is an employee requires a more flexible approach than the approach announced by the Intern Fact Sheet. The correct approach, the court concluded, considers the totality of the circumstances. And the proper inquiry in making such a determination for student-athletes must consider the true nature of the relationship between student-athletes and the university.

Examining the nature of that relationship, the court noted important facts of:

  • the country's "revered tradition of amateurism in college sports," as recognized by the U.S. Supreme Court in NCAA v. Board of Regents of Univ. of Oklahoma (1984) – a tradition that the court noted was an "essential part" of the economic reality between student-athletes and Penn
  • the generations of students who have vied to be a part of the athletics tradition with no thought of any compensation
  • the Department of Labor has never taken any action to apply the FLSA to student-athletes, though there are thousands of such unpaid athletes on college campuses each year
  • the Department of Labor has expressly taken the position that a student's participation in interscholastic athletics, even though he or she may receive minimal payment for participation in such activities, does not create an employment relationship

What the Ruling Means

In the midst of student-athlete litigation, the Berger decision is an important win for the NCAA and colleges, which have consistently argued that student-athletes should not be compensated. The decision is particularly helpful to the NCAA and colleges because the court expressly recognized the principle of amateurism in college sports, which has been a key litigation argument in defending student-athlete claims for compensation and other employee rights.

This is the latest in a series of legal wins for the NCAA and colleges on the issues of student-athlete compensation and attempts to classify student-athletes as employees.

In August 2015, the National Labor Relations Board (NLRB or the Board) dismissed a petition by Northwestern University scholarships football players seeking to unionize. The student-athletes argued that their receipt of scholarships in exchange for participating in football made them employees under the National Labor Relations Act. While that NLRB decision did not address whether scholarship football players were, in fact, employees under the NLRA, the Board declined to exercise jurisdiction in the case because of the composition and structure of the Football Bowl Subdivision college football league (comprised mostly of public colleges and universities over which the Board cannot assert jurisdiction), and the Board concluded that it would not promote stability in labor relations to assert jurisdiction in that case. (See Holland & Knight's alert, " NLRB Decision on Student-Athlete Unionization a Win for Colleges, But Title IX Still in Play," Aug. 26, 2015).

In September 2015, the U.S. District Court of Appeals for the Ninth Circuit in O'Bannon struck down a district court's order requiring that Division I men's football and basketball programs establish a system to pay student-athletes deferred compensation of up to $5,000 per year. Efforts to change aspects of the student-athlete experience continue at a number of levels, including with the NCAA, conferences, universities and in the legislature. (See Holland & Knight's alert, " Boston Ordinances Proposed to Address Student-Athlete Safety and Scholarships," Oct. 15, 2014.)

Vernon Strickland and David Santeusanio are members of Holland & Knight's Education Team, as well as its Collegiate Athletics Team, which advises clients on these and other matters related to collegiate athletic programs. We have deep experience litigating collegiate-athletics matters, advising institutions on the obligations and impact of Title IX, as well as on NCAA and other reporting issues, drafting contracts for individuals in athletic departments, separating from coaches when the situation demands and athletic conference realignment matters.    

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.