Berger v. NCAA Appeal Fails

By Derek Helling, From LastWordOnCollegeFootball.com

Late Monday, the United States Seventh Circuit Court of Appeals upheld the lower court’s ruling in Berger v. NCAA. The decision from the court maintains that student-athletes at NCAA member institutions are not employees of those institutions.

Berger v. NCAA Appeal Fails

Gillian Berger and the other two appellants are current or former members of the women’s track and field team at Penn University. They originally filed suit in the US District Court for the southern district of Indiana against not only their school but 123 other NCAA member institutions and the NCAA as well, and asked that the court certify the suit with class action status to include all current and former student-athletes at all NCAA member institutions.

Berger and her co-appellants alleged that the appellees were in violation of the Fair Labor Standards Act by not paying them a minimum wage. The weight of that allegation hinged on the court treating them as employees of the NCAA and the university.

The court denied the request to certify the suit as a class action affair, and found that the appellants had no standing to bring suit against any entity besides Penn. Ultimately, the court granted the defendant’s motion to dismiss the suit altogether on Feb. 6, 2016 due to the court’s lack of subject matter jurisdiction. Put more plainly, the presiding judge did not find that the court had the authority to settle the dispute because the appellants failed to make a claim that the court considered legitimate.

Appeal to the Circuit Court

Berger and her co-plaintiffs appealed the district court’s decision almost immediately, but the affirmation of the lower court’s ruling is even more damaging to their suit.

The Seventh Circuit plainly stated in its agreement with the lower court that the appellants have not, and can not, allege that their participation in NCAA competitions is work sufficient to trigger the requirements of the FLSA. The decision also stated that student-athletes at NCAA member institutions are not employees of either their respective institutions or the NCAA as a matter of law. Finally, the court found that the plaintiffs had failed to produce any facts to support their allegations, but rather made bare pleadings.

For the most part, this suit is dead. It’s highly unlikely that the Supreme Court of the United States would even take up an appeal of the case, much less reverse the decisions of the two lower courts. The concurring opinion of Judge Hamilton from the Circuit Court does create an interesting scenario, however.

The Next Step in the Process

Hamilton’s concurring opinion correctly points out that Penn does not grant athletic scholarships and that by and large, women’s track and field is not a revenue sport at NCAA schools.

He further states that the court’s opinion that such student-athletes are not employees in this case was partially based on the economic reality of the particular situation. Should student-athletes with a different economic reality, like scholarship athletes who play a revenue sport, present a similar case to the court then the possibility exists for further debate on the subject.

There is no guarantee that if scholarship football or men’s basketball players from NCAA member institutions were to bring a similar case, they would get a different result. Berger strengthens the legal precedent for relationships between student-athlete and school as not one which involves employment.

The fact that a circuit court has recognized a difference between athletes in non-revenue and revenue sports is significant, however, and could be used as ammunition for future suits which argue that athletes in revenue sports should be compensated above and beyond the cost of attending their schools.

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