Berger v. Nat'l Collegiate Athletic Ass'n, No. 16-1558

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtKanne, Circuit Judge.
Citation843 F.3d 285
Parties Gillian BERGER, et al., Plaintiffs-Appellants, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Defendants-Appellees.
Docket NumberNo. 16-1558
Decision Date05 December 2016

843 F.3d 285

Gillian BERGER, et al., Plaintiffs-Appellants,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Defendants-Appellees.

No. 16-1558

United States Court of Appeals, Seventh Circuit.

Argued September 28, 2016
Decided December 5, 2016
Rehearing and Rehearing En Banc* Denied January 4, 2017


Paul McDonald, Attorney, P L McDonald Law LLC, Philadelphia, PA, for Plaintiffs-Appellants.

William F. Allen, Attorney, Littler Mendelson, P.C., Daniel Volchok, Attorney, WilmerHale, Washington, DC, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald S. Prophete, Attorney, Constangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter, Attorney, Littler Mendelson, Atlanta,

843 F.3d 288

GA, for Defendant-Appellee National Collegiate Athletic Association.

William J. Anthony, Attorney, Jackson Lewis P.C., Albany, NY, Gregg E. Clifton, Attorney, Jackson Lewis, P.C., Phoenix, AZ, Paul DeCamp, Attorney, Jackson Lewis P.C., Reston, VA, D. Christopher Lauderdale, Attorney, Jackson Lewis P.C., Greenville, SC, for Defendants-Appellees Abilene Christian University, American University, Bucknell University, Charleston Southern University, Fordham University, Georgetown University, University of Hartford, Howard University, University of San Diego, University of Southern California, and Tulane University.

William F. Allen, Attorney, Littler Mendelson, P.C., Washington, DC, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald W. Myers, Attorney, Littler Mendelson, Philadelphia, PA, Donald S. Prophete, Attorney, Constangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter, Attorney, Littler Mendelson, Atlanta, GA, for Defendant-Appellee Belmont University.

William F. Allen, Attorney, Littler Mendelson, P.C., Washington, DC, Jim Goh, Attorney, Constangy, Brooks, Smith, & Prophete, LLP, Denver, CO, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald S. Prophete, Attorney, Constangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter, Attorney, Littler Mendelson, Atlanta, GA, for Defendant-Appellee University of Denver.

Danuta B. Panich, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, IN, for Defendant-Appellee Duke University.

Kelly L. DeGance, Attorney, Alexander DeGance Barnett, P.A., Jacksonville, FL, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, for Defendant-Appellee Jacksonville University

William J. Anthony, Attorney, Jackson Lewis P.C., Albany, NY, Gregg E. Clifton, Attorney, Jackson Lewis, P.C., Phoenix, AZ, Paul DeCamp, Attorney, Jackson Lewis P.C., Reston, VA, Lorna Hebert, Attorney, Northeastern University, Boston, MA, D. Christopher Lauderdale, Attorney, Jackson Lewis P.C., Greenville, SC, for Defendant-Appellee Northeastern University.

William F. Allen, Attorney, Littler Mendelson, P.C., Washington, DC,

Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald S. Prophete, Attorney, Constangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter, Attorney, Littler Mendelson, Atlanta, GA, Terry M. Kollmorgen, Attorney, Moyers Martin, LLP, Tulsa, OK, for Defendant-Appellee Oral Roberts University.

Lawrence D. Peikes, Attorney, Wiggin and Dana LLP, Stamford, CT, Jeffrey Babbin, Attorney, Wiggin & Dana, New Haven, CT, for Defendant-Appellee Quinnipiac University.

Before Kanne, Sykes, and Hamilton, Circuit Judges.

Kanne, Circuit Judge.

Former student athletes at the University of Pennsylvania ("Penn") sued Penn, the National Collegiate Athletic Association ("NCAA"), and more than 120 other NCAA Division I universities and colleges alleging that student athletes are employees who are entitled to a minimum wage under the Fair Labor Standards Act ("FLSA"). The district court disagreed. We agree with the district court and hold that student athletes are not employees and are not covered by the FLSA.

843 F.3d 289

I. BACKGROUND

Gillian Berger and Taylor Hennig ("Appellants") are former students at Penn who participated on Penn's women's track and field team. Like many collegiate athletic teams across the country, Penn's women's track and field team is regulated by the NCAA. The NCAA is a member-driven, unincorporated association of 1121 colleges and universities. It is divided into three divisions—Divisions I, II, and III—based roughly on the size of the schools and their athletic programs. Penn's women's track and field team competes in Division I, which includes the largest colleges and universities in the country.

Appellants sued Penn, the NCAA, and more than 120 other NCAA Division I member schools ("Appellees"), alleging that student athletes are "employees" within the meaning of the FLSA, 29 U.S.C. § 201. Accordingly, Appellants contend that the NCAA and its member schools violated the FLSA by not paying their athletes a minimum wage. Appellees moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The district court granted Appellees' motions, holding that (1) Appellants lacked standing to sue any of the Appellees other than Penn, and (2) Appellants failed to state a claim against Penn because student athletes are not employees under the FLSA. This appeal followed.

II. ANALYSIS

The district court first dismissed Appellants' suit against all of the Appellees except Penn for lack of standing. We review de novo a district court's dismissal of a complaint for lack of standing. Lewert v. P.F. Chang's China Bistro, Inc. , 819 F.3d 963, 966 (7th Cir. 2016).

In every case, the plaintiff has the burden of establishing the three elements of standing: that "(1) [he or she] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). To meet this burden and to survive a challenge to standing under Rule 12(b)(1), a plaintiff must plead sufficient factual allegations, taken as true, that "plausibly suggest" each of these elements. Silha v. ACT, Inc. , 807 F.3d 169, 174 (7th Cir. 2015).

Under the FLSA, alleged employees' "injuries are only traceable to, and redressable by, those who employed them." Roman v. Guapos III, Inc. , 970 F.Supp.2d 407, 412 (D. Md. 2013). Appellants attended Penn. Their connection to the other schools and the NCAA is far too tenuous to be considered an employment relationship: "the only fair reading of the Amended Complaint is that [Appellants] are alleging that they are employees of only Penn, not of the other Defendants." (R. 238 at 5.) Thus, Appellants have not plausibly alleged any injury traceable to, or redressable by, any defendant other than Penn. So they lack standing to sue those other defendants.

We now turn to the merits with regard to Penn, over which no one disputes that we have jurisdiction. The district court dismissed Appellants' suit against Penn for failure to state a claim. We review de novo a district court's dismissal of a complaint for failure to state a claim. Jackson v. Blitt & Gaines, P.C. , 833 F.3d 860, 862 (7th Cir. 2016). In evaluating

843 F.3d 290

the sufficiency of the complaint, "we construe it in the light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in [the nonmoving party's] favor." Bell v. City of Chicago , 835 F.3d 736, 738 (7th Cir. 2016) (quoting Reynolds v. CB Sports Bar, Inc. , 623 F.3d 1143, 1146 (7th Cir. 2010) ). Although a party need not plead "detailed factual allegations" to survive a motion to dismiss, mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

The FLSA requires "[e]very employer" to pay "his employees" a minimum wage of $7.25 per hour. 29 U.S.C. § 206(a)(1)(c). Section 203(e)(1) defines "employee" in an unhelpful and circular fashion as "any individual employed by an employer." 29 U.S.C. § 203(e)(1). Section 203(g) broadly defines "employ" as "to suffer or permit to work." 29 U.S.C. § 203(g). Thus, to qualify as an employee for purposes of the FLSA, one must perform "work" for an "employer."1 "Work" is not defined by the Act.

Under the FLSA, the plaintiff bears the burden of establishing that he or she performed work for an employer and is therefore entitled to compensation. Melton v. Tippecanoe Cty. , 838 F.3d 814, 818 (7th Cir. 2016)...

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225 practice notes
  • BCBSM, Inc. v. Walgreen Co., No. 20 C 1853
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 8 Enero 2021
    ...A motion to dismiss for failure to state a claim challenges the sufficiency of the complaint. Berger v. Nat'l Collegiate Athletic Ass'n , 843 F.3d 285, 289–90 (7th Cir. 2016). To survive a motion to dismiss under Rule 12(b)(6), the complaint "must contain sufficient factual matter, accepted......
  • Bldg. Owners & Managers Ass'n of Chi. v. City of Chi., No. 19 CV 7212
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 19 Enero 2021
    ...is granted.Legal StandardA Rule 12(b)(6) motion challenges the "sufficiency of the complaint." Berger v. Nat. Collegiate Athletic Assoc. , 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," F......
  • Aquino v. C.R. Bard, Inc., No. 18-cv-5291
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 19 Septiembre 2019
    ...are granted.STANDARDA Rule 12(b)(6) motion challenges the "sufficiency of the complaint." Berger v. Nat. Collegiate Athletic Assoc. , 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R......
  • Johnson v. Nat'l Collegiate Athletic Ass'n, CIVIL ACTION NO. 19-5230
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 25 Agosto 2021
    ...decision in National Collegiate Athletic Association v. Board of Regents and on Berger v. National Collegiate Athletic Association, 843 F.3d 285 (7th Cir. 2016), in which the United States Court of Appeals for the Seventh Circuit rejected a lawsuit brought pursuant to the FLSA by former stu......
  • Request a trial to view additional results
222 cases
  • BCBSM, Inc. v. Walgreen Co., No. 20 C 1853
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 8 Enero 2021
    ...A motion to dismiss for failure to state a claim challenges the sufficiency of the complaint. Berger v. Nat'l Collegiate Athletic Ass'n , 843 F.3d 285, 289–90 (7th Cir. 2016). To survive a motion to dismiss under Rule 12(b)(6), the complaint "must contain sufficient factual matter, accepted......
  • Bldg. Owners & Managers Ass'n of Chi. v. City of Chi., No. 19 CV 7212
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 19 Enero 2021
    ...is granted.Legal StandardA Rule 12(b)(6) motion challenges the "sufficiency of the complaint." Berger v. Nat. Collegiate Athletic Assoc. , 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," F......
  • Aquino v. C.R. Bard, Inc., No. 18-cv-5291
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 19 Septiembre 2019
    ...are granted.STANDARDA Rule 12(b)(6) motion challenges the "sufficiency of the complaint." Berger v. Nat. Collegiate Athletic Assoc. , 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R......
  • Johnson v. Nat'l Collegiate Athletic Ass'n, CIVIL ACTION NO. 19-5230
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 25 Agosto 2021
    ...decision in National Collegiate Athletic Association v. Board of Regents and on Berger v. National Collegiate Athletic Association, 843 F.3d 285 (7th Cir. 2016), in which the United States Court of Appeals for the Seventh Circuit rejected a lawsuit brought pursuant to the FLSA by former stu......
  • Request a trial to view additional results
2 firm's commentaries
  • NLRB GC Memo Says Certain College Athletes Are Employees, Have Right To Unionize
    • United States
    • Mondaq United States
    • 5 Octubre 2021
    ...are not employees of the NCAA or their athletic conferences. For example, in Berger v. National Collegiate Athletic Association, 843 F.3d 285 (7th Cir. 2016), the 7th Circuit held that two former student-athletes on the University of Pennsylvania's track and field team were not entitled to ......
  • NLRB GC Memo Says Certain College Athletes Are Employees, Have Right To Unionize
    • United States
    • Mondaq United States
    • 5 Octubre 2021
    ...are not employees of the NCAA or their athletic conferences. For example, in Berger v. National Collegiate Athletic Association, 843 F.3d 285 (7th Cir. 2016), the 7th Circuit held that two former student-athletes on the University of Pennsylvania's track and field team were not entitled to ......

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