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University of Pennsylvania student-athletes seek rehearing of employee status denial in Seventh Circuit

On December 16, former members of the University of Pennsylvania’s women’s track team filed a petition for en banc rehearing of the Seventh Circuit’s decision that they were not employees of the university under the FLSA, and so were not entitled to be paid minimum wage for their work performed as student athletes.

The petition claims, among other things, that the Seventh Circuit’s December 5 opinion conflicts with decisions that establish employee status is a fact-intensive inquiry and, thus, not suitable for dismissal before discovery is applied to an employee test to determine “economic reality.”

It argues, further, that the panel’s conflicting opinion that employee status is not a fact-intensive inquiry relies upon misapplication of Thirteenth Amendment decisions, “which establish that the Constitution’s singular allowance for unpaid involuntary servitude precludes only prisoners from proving any set of facts to establish employee status.” According to the petitioners, “the opinion grants NCAA-defined amateurism rules the same claim preclusion as the Thirteenth Amendment and, in effect, confers upon student athletes a legal status similar to prisoners.”

Additionally, the petition says the opinion conflicts with precedent establishing that nonregulatory guidelines of agencies are not dispositive—here, the Department of Labor Field Operations Handbook §10b03(e)–rather, at most, can persuade upon a record demonstrating “thoroughness evident in its consideration, the validity of its reasoning [and] its consistency.” “Here, there is no such deliberative record,” the petitions says, suggesting there is “only speculation that it includes NCAA-regulated sports in its list of student-run groups that ordinarily do not create an employer-employee relationship.”

Affirming dismissal of their claims, the appeals court had concluded that student athletes participate in their sports for reasons wholly unrelated to immediate compensation. Applying the economic realities test, the tradition of amateurism in college sports, and eligibility rules that define what it means to be a student-athlete, the court found that student-athletic “play” is not “work,” as that term is used in the FLSA (Berger v. National Collegiate Athletic Association ).