Former Track & Field Athletes Petition for En Banc Review in the Face of Latest Defeat in Student-Athlete Employment Fight

Two former NCAA track and field athletes are petitioning the Seventh Circuit to overrule itself, in one of the highest profile student-athlete lawsuits since the Ed O’Bannon litigation. Plaintiffs Gillian Berger and Taylor Hennig competed for the University of Pennsylvania, and argue that the hours spent training and competing for their school violated the wage-and-hour provisions of the Fair Labor Standards Act (FLSA). The defendants, which include the NCAA, won a motion to dismiss the case this past February. That order was upheld by the Seventh Circuit on Monday, December 5, 2016, when a three-judge panel determined that the plaintiffs were not “working” for an “employer” as that term is used within the FLSA.

The plaintiffs asked the court to use the multi-factor test outlined in Glatt v. Searchlight Pictures, Inc. to determine whether student-athletes were employees. In Glatt, the Second Circuit outlined a non-exhaustive list of factors to make such a determination, measuring the extent to which:

  1. The intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  1. The internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  1. The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  1. The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  1. The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  1. The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  1. The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

But the Seventh Circuit rejected this test, opting for the analysis provided by Vanskike v. Peters, where the court determined that inmates in a state prison were not employees under the FLSA. There, the court of appeals rejected a similar multi-factor test, following a “flexible” inquiry to determine the “economic reality of the alleged employment relationship.” The plaintiffs here contend that using the Vanskike rationale in this context is improper because Vanskike applies only to prisoners under the Thirteenth Amendment. As such, the plaintiffs claim that Vanskike’s instruction “cannot deny anyone, not ‘duly convicted,’ of opportunity to prove facts to establish employee status.”

The plaintiffs’ case is emblematic of a noticeable split in the Circuit Court of Appeals. In the Ed O’Bannon litigation, the Ninth Circuit held that NCAA compensation rules for Division I men’s basketball players and Football Bowl Subdivision football players violated federal antitrust laws. Taken together with the Second Circuit’s decision in Glatt, the plaintiffs’ case could be ripe for review by the Supreme Court after the high court declined to hear an appeal in the O’Bannon case.

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