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Berger v. NCAA: Motion to Dismiss Granted

The three plaintiffs in this matter were one time members of the women’s track and field team at the University of Pennsylvania (“Penn”). The plaintiffs argue they are employees of Penn for the purposes of the Fair Labor Standards Act (“FLSA”) and, thus, they are entitled under the wage-and-hour provisions of the FLSA to be paid at least minimum wage for the work they perform as student-athletes. The plaintiffs sued the National Collegiate Athletic Association (“NCAA”) and 123 NCAA member institutions that field Division I athletic teams.

The defendants filed various motions seeking dismissal of the plaintiffs’ claims. First, the defendants argued the plaintiff lacked standing to sue any of the defendants other than Penn. The court agreed with the defendant and stated “the Amended Complaint fails to allege that the [p]laintiffs are employees of any [d]efendant other than Penn.” Accordingly, the court dismissed the plaintiffs’ claims against all defendants other than Penn without prejudice for lack of jurisdiction.

The defendants also moved for dismissal in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure by arguing the plaintiffs failed to state a claim against any of the defendants under the FLSA. The plaintiffs’ claims hinged on whether they were properly characterized as “employees” of Penn under the FLSA. The court indicated that the plaintiffs made “essentially a fairness argument.” The plaintiffs, as student-athletes, analogized themselves to interns and, thus, argued that they should be considered employees. The court did not concur and stated: 1) “[u]nlike student athletes, the interns…are working (in the broadest sense of the word) for entities that employ others to do the same type of work for compensation. Thus, they are in a traditional employment setting, not an education setting….;” 2) “students at Penn who chose to participate in sports—whether NCAA sports, club sports, or intramural sports—as part of their educational experience do so because they view it as beneficial to them;” and 3) “[there are] thousands of unpaid college athletes on college campuses each year [and it] is not a secret, and yet the Department of Labor has not taken any action to apply the FLSA to them.” In conclusion, the court stated “[t]he economic reality of the situation and the DOL’s position on the issue both point to one conclusion: the fact that the [p]laintiffs participate in an NCAA athletic team at Penn does not make them employees of Penn for FLSA purposes.” Accordingly, the court granted the motion to dismiss.

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