On February 16, 2016, a federal district court in Indiana held that former athletes at the University of Pennsylvania were not university employees entitled to the protections of the Fair Labor Standards Act (FLSA).  The plaintiffs—former track and field athletes at Penn—brought collective action claims against Penn, the NCAA, and more than 100 other colleges and universities, alleging that student athletes are employees entitled to minimum wage protections under federal wage and hour law.

Focusing on the “economic reality” of the relationship between Penn and the student athletes, the United States District Court for the Southern District of Indiana in Anderson v. NCAA, No. 1:14-cv-01710, concluded that student athletes are not “employees” for FLSA purposes and dismissed the FLSA claims against Penn.  The court noted that generations of students have sought to be part of the “revered tradition” of unpaid college athletics, and that the students view college athletics as primarily benefitting their own educational experience.  The court also pointed out that the U.S. Department of Labor (DOL) has never taken action to apply the FLSA to college athletes, notwithstanding that long tradition.

The court rejected the plaintiffs’ argument that the factors listed in the DOL’s “Intern Fact Sheet” supported a finding of an employment relationship.  The court emphasized that the Intern Fact Sheet applied to interns rather than to student athletes, and noted that courts have refused to defer to the DOL’s factors even in cases specifically involving interns, citing the recent Second Circuit decision in Glatt v. Fox Searchlight Pictures, Inc. (discussed here).

The court also dismissed the claims against the NCAA as the other university defendants for lack of Article III standing, noting that the plaintiffs had failed to establish that they had been injured by any institution other than Penn and failed to plausibly allege a joint employment relationship with any other defendant.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.