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Case: 16-1558 Document: 24 Filed: 06/14/2016 Pages: 86

No. 16-1558

IN THE UNITED STATES COURT OF APPEALS


FOR THE SEVENTH CIRCUIT

GILLIAN BERGER, ET AL.,


Plaintiffs-Appellants,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.,
Defendants-Appellees.
__________________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION

CASE NO. 1:14-CV-01710-WTL-MJD

THE HONORABLE WILLIAM T. LAWRENCE

APPELLEES’ BRIEF FOR NCAA AND CERTAIN SCHOOLS

Lisa A. Schreter Alan L. McLaughlin


LITTLER MENDELSON, PC Counsel of Record
3344 Peachtree Road N.E. LITTLER MENDELSON, PC
Suite 1500 111 Monument Circle
Atlanta, GA 30326-4803 Suite 702
(404) 233-0330 Indianapolis, IN 46204
lschreter@littler.com (317) 287-3600
amclaughlin@littler.com

Appearances Continued Below


Case: 16-1558 Document: 24 Filed: 06/14/2016 Pages: 86

William F. Allen Donald S. Prophete


LITTLER MENDELSON, P.C. COSTANGY BROOKS SMITH &
815 Connecticut Avenue, NW PROPHETE LLP
Suite 400 2600 Grand Blvd, Suite 750
Washington, DC 20006 Kansas City, MO 64108
(202) 842-3400 (816) 329-5930
ballen@littler.com dprophete@constangy.com

Attorneys for Defendants-Appellees the NCAA and Certain Schools

Danuta Bembenista Panich,


Counsel of Record
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
111 Monument Circle
Suite 4600
Indianapolis, IN 46204
(317) 916-2168
danuta.panich@ogletreedeakins.com

Attorney for Defendant-Appellees


Duke University & Wake Forest University

Lawrence Peikes
Counsel of Record
Jeffrey R. Babbin
WIGGIN AND DANA LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901
(203) 363-7609
lpeikes@wiggin.com
jbabbin@wiggin.com

Attorneys for Defendant-Appellee Quinnipiac University


Case: 16-1558 Document: 24 Filed: 06/14/2016 Pages: 86

DISCLOSURE STATEMENTS

The National Collegiate Athletic Association


and Certain Schools Disclosure Statement

Counsel for the National Collegiate Athletic Association and Certain

Schools, furnish the following information required by Circuit Rule

26.1:

1. The full name of every party that the attorneys represent in

this case:

National Collegiate Athletic Association


Belmont University
Bethune-Cookman University
Boston College
Boston University
Bradley University
Brown University
Bryant University
Butler University
Campbell University (Incorporated)
Canisius College
Colgate University
College of The Holy Cross
Columbia University
Cornell University
Creighton University
Dartmouth College
Davidson College
DePaul University
Drake University
Duquesne University
Elon University
Fairfield University

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Fairleigh Dickinson University


Gardner-Webb University
Gonzaga University
Hampton University
Harvard University
High Point University
Hofstra University
Houston Baptist University
Iona College
Jacksonville University
La Salle University
Liberty University
Lipscomb University
Long Island University, Brooklyn
Loyola Marymount University
Loyola University Maryland
Loyola University of Chicago
Manhattan College
Marist College
Marquette University
Mercer University
Monmouth University
Mount St. Mary's University
Niagara University
Northwestern University
Oral Roberts University
Pennsylvania State University
Pepperdine University
Presbyterian College
Princeton University
Providence College
Rider University
Robert Morris University
Sacred Heart University
Saint Francis University
Saint Joseph's University
Saint Louis University
Santa Clara University

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Seattle University
Seton Hall University
Siena College
St. Bonaventure University
St. Francis College
St. John's University
St. Peter's University
Stetson University
Temple University
University of Dayton
University of Delaware
University of Denver
University of Detroit Mercy
University of Evansville
University of Miami
University of New Hampshire (University System of New Hampshire)
University of Notre Dame
University of Pennsylvania
University of Pittsburgh
University of Portland
University of Rhode Island
University of Richmond
University of Tulsa
Valparaiso University
Vanderbilt University
Villanova University
Wagner College
Wofford College
Xavier University
Yale University

2. The names of all law firms whose partners or associates

have appeared for the parties in this case (including proceedings in the

district court or before an administrative agency) or are expected to

appear for the parties in this court:

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(a) Littler Mendelson, P.C. (as to all);

(b) Constangy Brooks Smith & Prophete LLP (as to all);

(c) Moyers Martin LLP (as to Oral Roberts University); and

(d) Alexander Degance Barnett, P.A. (as to Jacksonville

University and Stetson University below).

3. If the parties are a corporation: i) Identify all its parent

corporations, if any; and ii) list any publicly held company that owns

10% or more of the party’s or amicus’ stock: None

/s/Alan L. McLaughlin
Alan L. McLaughlin
Counsel of Record
LITTLER MENDELSON, P.C.
111 Monument Circle, Suite 702
Indianapolis, IN 46204
Tel: 317.287.3600
Fax: (317) 636-0712
amclaughlin@littler.com

/s/ Lisa A. Schreter


Lisa A. Schreter
LITTLER MENDELSON, PC
3344 Peachtree Road N.E.
Suite 1500
Atlanta, GA 30326-4803
Tel: (404) 233-0330
Fax: (404) 233-2361
lschreter@littler.com

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/s/William F. Allen
William F. Allen
LITTLER MENDELSON, P.C.
815 Connecticut Avenue, NW
Suite 400
Washington, DC 20006
Tel: (202) 842-3400
Fax: (202) 842-0011
ballen@littler.com

/s/Donald S. Prophete
Donald S. Prophete
COSTANGY BROOKS SMITH &
PROPHETE LLP
2600 Grand Blvd, Suite 750
Kansas City, MO 64108
Tel: (816) 329-5930
Fax: (816) 472-6401
dprophete@constangy.com

Attorneys for the NCAA and


Certain Schools

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Duke University and Wake Forest University


Disclosure Statement

Counsel for Duke University and Wake Forest University,

furnishes the following information required by Circuit Rule 26.1:

1. The full name of every party that the attorney represents in this

case: Duke University; Wake Forest University

2. The names of all law firms whose partners or associates have

appeared for the party in this case (including proceedings in the district

court or before an administrative agency) or are expected to appear for

the party in this court: Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

3. If the party or amicus is a corporation: i) Identify all its parent

corporations, if any; and ii) list any publicly held company that owns

10% or more of the party’s or amicus’ stock: None

/s/Danuta Bembenista Panich


Danuta Bembenista Panich,
Counsel of Record
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
111 Monument Circle, Suite 4600
Indianapolis, IN 46204
Tel: (317) 916-2168
Fax: (317) 916-9076
danuta.panich@ogletreedeakins.com

Attorney for Defendant-Appellees Duke


University and Wake Forest University

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Quinnipiac University Disclosure Statement

Counsel for Quinnipiac University, furnishes the following

information required by Circuit Rule 26.1:

1. The full name of every party that the attorney represents in this

case: Quinnipiac University

2. The names of all law firms whose partners or associates have

appeared for the party in this case (including proceedings in the district

court or before an administrative agency) or are expected to appear for

the party in this court: Wiggin and Dana LLP

3. If the party or amicus is a corporation: i) Identify all its parent

corporations, if any; and ii) list any publicly held company that owns

10% or more of the party’s or amicus’ stock: None

/s/ Lawrence Peikes


Lawrence Peikes, Counsel of Record
Jeffrey R. Babbin
WIGGIN AND DANA LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901
Tel: (203) 363-7609
Fax: (203) 363-7676
lpeikes@wiggin.com
jbabbin@wiggin.com

Attorneys for Defendant-Appellee


Quinnipiac University

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TABLE OF CONTENTS

DISCLOSURE STATEMENTS .................................................................. i


TABLE OF CONTENTS ........................................................................viii
TABLE OF AUTHORITIES ..................................................................... xi
ORAL ARGUMENT REQUESTED ....................................................... xvi
JURISDICTIONAL STATEMENT ........................................................... 1
STATEMENT OF THE ISSUES ............................................................... 2
STATEMENT OF THE CASE .................................................................. 2
SUMMARY OF ARGUMENT ................................................................... 6
STANDARD OF REVIEW....................................................................... 12
ARGUMENT ........................................................................................... 13
I. Appellant Student-Athletes Did Not (And Cannot)
Plead Sufficient Facts To Raise A Plausible Claim
That An Employer-Employee Relationship Existed
Between Penn And Them............................................................... 13
A. Legal Standards on Motion to Dismiss ....................................... 13
B. An FLSA Employee-Employer Relationship Only
Exists if “Work” Is Performed ..................................................... 14
C. Appellant Student-Athletes Did Not Plead Any
Facts to Support Their Conclusory Allegations
that They Performed “Work” for Penn ....................................... 16
D. The District Court Correctly Concluded that the
Economic Reality is that No Employer-Employee
Relationship Exists Between Penn and Appellant
Student-Athletes ......................................................................... 22
1. The comparison to work-study participants is
inapt ........................................................................................ 26
2. The District Court correctly concluded that a
multi-factor analysis applicable to student interns
in private sector for-profit employment settings
does not apply to college student-athletes ............................. 31

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E. The District Court Correctly Concluded that the


Department of Labor Does Not Regard College
Student-Athletes as “Employees” under the FLSA .................... 37
1. The DOL Field Operations Handbook explains
that participation in collegiate interscholastic
athletics is not “work” ............................................................. 38
2. Appellant student-athletes’ interpretation of
“interscholastic athletics” is not plausible ............................. 41
(a) The DOL did not exclude NCAA regulated sports
from its guidance on extracurricular activities ................... 42
(b) The purported differences between NCAA sports
and other extracurricular activities are
irrelevant.............................................................................. 45
F. In a Variety of Contexts, Federal and State Courts
Have Consistently Held that Student-Athletes are
not Employees ............................................................................. 51
G. No Further Factual Development Is Required........................... 57
II. The District Court Correctly Concluded That The
Amended Complaint Fails To Allege Facts Sufficient
To Raise A Plausible Claim That They Were Jointly
Employed By The NCAA Or Schools That They Did
Not Attend And No Article III Standing Exists With
Respect To Those Parties ............................................................... 60
III. Appellant Student-Athletes Have Waived Or Forfeited
Any Opportunity For Further Amendment Of Their
Amended Complaint....................................................................... 62
A. Appellants Failed to Address the Argument that
They
Have Not and Cannot Plead Any Facts to Support
that their Athletic Activities Meet The Elements of
“Work”.......................................................................................... 62
B. Appellants Failed to Seek Leave to Amend in the
District Court .............................................................................. 64
C. Any Amendment Would Be Futile .............................................. 65

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CONCLUSION ........................................................................................ 66
RULE 32 CERTIFICATE OF COMPLIANCE ....................................... 67
PROOF OF SERVICE ............................................................................. 68

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TABLE OF AUTHORITIES
Cases
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1058-59 (D.C. Cir. 2007) ....... 41
Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) .................. 13
Alexander v. Stratus Building Solutions, No. 4:14 CV 921 CDP, 2014 U.S.
Dist. LEXIS 164194, *1 (E.D. Mo. Nov. 24, 2014) ........................................ 59
Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) ........................... 63
Ambrosia Land Investments, LLC. v. Peabody Coal Co., 521 F.3d 778, 781
(7th Cir. 2008) ................................................................................................. 37
Ash v. Anderson Merchandisers, LLC, 799 F.3d 957 (8th Cir. 2015), cert.
denied, 136 S. Ct. 804 (2016) ....................................................... 17, 18, 57, 64
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................... 13, 14, 17, 18, 22
Banks v. National Collegiate Athletic Ass’n, 977 F.2d 1081, 1089 (7th Cir.
1992) ................................................................................................................ 28
Barfield v. NYC Health & Hosps. Corp., 537 F.3d 132 (2d Cir. 2008) ...... 25, 36
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .......................... 14, 17, 22
Bennett v. Frank, 395 F.3d 409, 409 (7th Cir. 2005).......................................... 6
Blair v. Wills, 420 F.3d 823, 829 (8th Cir. 2005) ....................................... 34, 50
Blanchar v. Standard Insurance Co., 736 F. 3d 753, 756 (7th Cir. 2013) ...... 58
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 462 (7th Cir. 2010) .......................... 63
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) ........................................... 13
Brower v. Metropolitan Dade County, 139 F.3d 817, 819 (11th Cir. 1998) .... 57
Brown v. New York City Dep’t of Educ., 755 F.3d 154 (2d Cir. 2014) ....... 21, 24
Callahan v. City of Chicago, 813 F.3d 658, 2016 U.S. App. LEXIS 2667 (7th
Cir. 2016)............................................................................................... 7, 25, 32
Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) .... 19
Charleston v. Bd. of Trustees of Univ. of Ill. at Chicago, 741 F.3d 769 (7th Cir.
2013) .............................................................................................. 12, 13, 14, 65
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-70 (2012). 44
Coleman v. Western Mich. Univ., 125 Mich. App. 35, 42-44 (1983) ................ 55
Colorado Seminary (University of Denver) v. National Collegiate Athletic
Ass’n., 570 F.2d 320, 321 (10th Cir. 1978) .................................................... 56
Danneskjold v. Hausrath, 82 F.3d 37, 42-43 (2d Cir. 1996) ............................ 26
Donovan v. American Airlines, Inc., 686 F.2d 267, 271-72 (5th Cir. 1982) .... 35
Doyle v. City of New York, 91 F. Supp. 3d 480 (S.D.N.Y. 2015) ................ 26, 58
Driver v. AppleIllinois, LLC, 739 F.3d 1073, 1075 (7th Cir. 2014) ................. 40
Emanuel v. Rolling in the Dough, Inc. No. 10 C 2270, 2012 U.S. Dist. LEXIS
166206, *10-11 (N.D. Ill. Nov. 21, 2012) ....................................................... 21
Equity in Athletics, Inc., v. Dep’t of Educ., 675 F. Supp. 2d 660, 681 (W.D. Va.
2009) ................................................................................................................ 56

xi
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Fed. Express Corp. v. Holowecki, 552 U.S. 389, 390 (2008) ............................. 40
Freeman v. Key Largo Volunteer Fire & Rescue Dep’t, 494 Fed. Appx. 940,
944 (11th Cir. 2012) .................................................................................. 57, 61
Fuss v. State, 2006 U.S. Dist. LEXIS 55699, at *14-19 (M.D.N.C. Aug. 9,
2006) ................................................................................................................ 61
G&S Holdings LLC v. Continental Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012)
......................................................................................................................... 63
Gardner v. Wansart, No. 05 Civ. 3351 (SHS), 2006 U.S. Dist. LEXIS 69491,
*17 (S.D.N.Y. Sept. 25, 2006) ......................................................................... 56
Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015), as
amended, 811 F.3d 528 (2016) ......................................... 31, 34, 35, 36, 37, 41
Gonzales v. Oregon, 546 U.S. 243, 256-57 (2006) ............................................. 41
Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1075 (7th Cir. 2013)....... 63
Guevara v. INS, No. 90-1476, 1992 U.S. App. LEXIS 219 (Fed. Cir. Jan. 6,
1992) ................................................................................................................ 58
Hallak v. L3 Communications Corp., 490 Fed. Appx. 2 (9th Cir. 2012) ......... 57
Hallisey v. Am. Online, Inc., No. 99-CIV-3785 (KTD), 2006 U.S. Dist. LEXIS
12964, *16 (S.D.N.Y. Mar. 10, 2006) ............................................................. 21
Han v. United Continental Holdings, Inc., 762 F.3d 598 (7th Cir. 2014) . 13, 60
Hennessey v. NCAA, 564 F.2d 1136 (5th Cir. 1977) ........................................... 9
Karr v. Strong Dectective Agency, Inc., 787 F.2d 1205, 1207 (7th Cir. 1986) . 24
Kavanagh v. Trustees of Boston Univ., 440 Mass. 195 (Mass. 2003) .............. 55
Kellar v. Summit Seating Inc., 664 F.3d 169 (7th Cir. 2011) .......................... 15
Kemether v. Pennsylvania Interscholastic Athletics Ass’n, 15 F. Supp. 2d 740,
759 n.11 (E.D. Pa. 1998) ........................................................................ 6, 51-52
Kim v. Park, No. 08 CV 5499, 2009 U.S. Dist. LEXIS 51591, *6 n.2 (N.D. Ill.
June 16, 2009) ................................................................................................. 40
Korellas v. Ohio State Univ., 121 Ohio Misc.2d 16 (Ohio Ct. Cl. 2002) .......... 56
Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 525 (6th Cir. 2011) ...... 34
Leavell v. Illinois Dep’t of Nat. Res., 600 F.3d 798, 808 (7th Cir. 2010) ......... 66
Lofther v. First Nat’l Bank, 138 F.2d 299, 301 (7th Cir.1943 ) ....................... 37
Love v. JP Cullen & Sons, Inc., 779 F.3d 697 (7th Cir. 2015) ......................... 46
Loving v. Johnson, 455 F.3d 562, 564 (5th Cir. 2006) ..................................... 57
Marshall v. Regis Educational Corp., 666 F.2d 1324 (10th Cir. 1981)30, 52, 53
McCormack v. National Collegiate Athletics Ass’n., 845 F.2d 1338, 1345 (5th
Cir. 1988)......................................................................................................... 28
McLaughlin v. Ensley, 877 F.2d 1207, 1209, 1210 n.2 (4th Cir. 1989) ........... 34
McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012) . 14
Miller v. Advanced Studies, Inc., 635 F. Supp. 1196 (N.D. Ill. 1986) ............. 58
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1275 n.65 (11th Cir.
2008) ................................................................................................................ 41

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National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 183 (1988) .......
28, 33
NCAA v. Yeo, 171 S.W.3d 863, 865-70 (Tex. 2005) .......................................... 56
New York v. Shalala, 119 F.3d 1715, 180 (D.C. Cir. 1997) ............................. 41
Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 35, 37 (1st Cir.
2014) ................................................................................................................ 41
Northwestern Univ., 2014 NLRB LEXIS 221 (N.L.R.B. Mar. 26, 2014) ......... 51
Northwestern Univ., 2015 NLRB LEXIS 613 (N.L.R.B. Aug. 17, 2015) ......... 51
Patel v. Wargo, 803 F.2d 632, 635 (11th Cir. 1986) ......................................... 14
Pethinaidu Veluchamy v. FDIC, 706 F.3d 810, 820 (7th Cir. 2013) ............... 64
Pocono Invitational Sports Camp v. NCAA, 317 F. Supp. 2d 569, 572 (E.D.
Pa. 2004)....................................................................................................... 9-10
Purdham v. Fairfax County Sch. Bd., 637 F.3d 421, 428 (4th Cir. 2011) ...... 21
Reich v. Miss Paula’s Day Care Ctr., 37 F.3d 1191, 1194 (6th Cir. 1994) ...... 40
Reich v. Parker Fire Protection Dist., 992 F.2d 1023, 1026 (10th Cir. 1993).. 34
Rensing v. Indiana State University Board of Trustees, 444 N.E.2d 1170, 1173
(Ind. 1983) ....................................................................................................... 54
Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)......................... 23
Rutherford v. Judge & Dolph, Ltd., 707 F.3d 710, 717 (7th Cir. 2013) .......... 64
Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir. Ariz. 1981)
......................................................................................................................... 56
Schaefer v. Walker Bros. Enters., Inc., No. 10 CV 6366, 2014 U.S. Dist. LEXIS
177157, *8 (N.D. Ill. Dec. 17, 2014) ............................................................... 40
Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1209, 1212 (11th Cir.
2015) ................................................................................................................ 34
Secretary of Labor v. Lauritzen, 835 F.2d 1529 (7th Cir. 1987) .... 15, 23, 24, 25
Sehie v. City of Aurora, 432 F.3d 749, 751 (7th Cir. 2005) ......................... 15-16
Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505 (7th Cir. 2009) . 64, 66
Shepard v. Loyola Marymount Univ., 102 Cal. App. 4th 837, 845 (Cal. App.
2002) ................................................................................................................ 30
Slaney v. International Amateur Athletic Found., 244 F.3d 580 (7th Cir. 2001)
......................................................................................................................... 12
Solis v. Intern. Detective & Protective Serv., Ltd., 819 F. Supp. 2d 740, (N.D.
Ill. 2011) ..................................................................................................... 14-15
Southern Indiana Gas & Electric Co. v. United States, 1978 U.S. Dist. LEXIS
7053, at *19 (S.D. Ind. Dec. 22, 1978) ........................................................... 46
State Compensation Ins. Fund v. Industrial Comm’n, 135 Colo. 570 (1957) . 55
Steelman v. Hirsch, 473 F.3d 124, 128 (4th Cir. 2007) .............................. 23, 24
Tennessee Coal, Iron, & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590
(1944) ......................................................................................... 8, 16, 23, 28, 62
Tomlinson v. Trustees of Univ. of Pa., 164 F. Supp. 353, 354 (E.D. Pa. 1958) . 9

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Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 295, 301 (1985)
.............................................................................................................. 22-23, 27
U.S. v. Brown Univ., 772 F. Supp. 241, 241-42 (E.D. Pa. 1991) ....................... 9
Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665, 675-76 (7th Cir.
2010) ................................................................................................................ 40
Vanskike v. Peters, 724 F.2d 806 (7th Cir. 1992) ..... 8, 23, 25, 26, 27, 32, 36, 57
Waldrep v. Texas Employers Ins. Assoc., 21 S.W.3d 692, 701 (Tex. App. 2000)
......................................................................................................................... 55
Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947) .. 10, 11, 21, 24, 32
Warren v. Stone, 958 F.2d 1419, 1424 (7th Cir. 1992) ..................................... 59
White v. Classic Dining Acquisition Corp., No. 1:11-cv-712-JMS-MJD, 2012
U.S. Dist. LEXIS 52215, *6 (S.D. Ind. Apr. 13, 2012) .................................. 14
Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505 (7th Cir. 2007) ........ 40, 44, 45
Statutes and Regulations
28 U.S.C. § 1291 ................................................................................................... 1
28 U.S.C. § 1331 ................................................................................................... 1
29 C.F.R. § 785.7 (26 Fed. Reg. 190, Jan. 11, 1961, as amended at 76 Fed.
Reg. 18859, Apr. 5, 2011) ............................................................. 12, 16, 18, 36
29 U.S.C. § 201 ..................................................................................................... 3
29 U.S.C. § 203(d) .............................................................................................. 15
29 U.S.C. § 203(e)(1) .......................................................................................... 15
29 U.S.C. § 203(g) ........................................................................................ 15, 39
29 U.S.C. § 216(b) ............................................................................................ 1, 3
29 U.S.C. §§ 201-219 ............................................................................................ 1
Other Authorities
Black’s Law Dictionary (8th ed. 2004) .............................................................. 11
DOL Field Operations Handbook (“FOH”) ................................................passim
FOH § 10b03(e) ..................................................................... 7, 39, 43, 46, 47, 50
FOH § 10b09(a) .................................................................................................. 15
FOH § 10b24(a) .......................................................................... 28, 38, 39, 42, 52
FOH § 10b24(b) ................................................................................ 27, 33, 38, 39
http://www.merriam-webster.com/dictionary/extracurricular ........................ 42
http://www.merriam-webster.com/thesaurus/internship ................................ 32
http://www.oxforddictionaries.com/definition/
american_english/extracurricular ................................................................. 43
http://www.thefreedictionary.com/extracurricular .......................................... 42
http://www.thefreedictionary.com/internship .................................................. 32
http://www.upenn.edu/recreation/wp-content/uploads/2014/09/SCC-
Handbook-14-15.pdf ....................................................................................... 49

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Robert J. Sternberg, College Athletics: Necessary, Not Just Nice to Have,


NACUBO Business Officer Magazine (Sept. 1, 2011) .................................. 29
W.L. Dudley, Athletic Control in School and College, 11 The Sch. Rev. 95, 95
(1903) ............................................................................................................... 29
Rules
Fed. R. App. P. 32(a)(5)...................................................................................... 67
Fed. R. App. P. 32(a)(6)...................................................................................... 67
Fed. R. App. P. 32(a)(7)(B)................................................................................. 67
Fed. R. App. P. 32(a)(7)(B)(iii) ........................................................................... 67
Fed. R. Civ. P. 12(b)(1) ................................................................................... 4, 12
Fed. R. Civ. P. 12(b)(6) ................................................................................passim

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ORAL ARGUMENT REQUESTED

Defendant-Appellees the National Collegiate Athletic Association

and Certain Schools request oral argument in this matter.

xvi
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JURISDICTIONAL STATEMENT

Plaintiffs Gillian Berger and Taylor Hennig filed their Amended

Complaint purporting to state a claim for relief under the Fair Labor

Standards Act (the “FLSA”), 29 U.S.C. §§ 201-219, thereby giving rise to

federal question jurisdiction in the District Court under 28 U.S.C.

§ 1331 and 29 U.S.C. § 216(b). (A. 4-27; R. 119).1 On February 16, 2016,

the District Court entered an order granting the various Defendants’

motions to dismiss the Amended Complaint without leave to amend.

(A. 28-46; R. 238). That same day, the District Court entered final

judgment disposing of all claims as to all parties. (R. 239).

Plaintiffs filed their Notice of Appeal in the District Court on

March 14, 2016, within the thirty days specified in Rule 4(a)(1)(A) of the

Federal Rules of Appellate Procedure. (R. 240). This Court, therefore,

has jurisdiction over this appeal under 28 U.S.C. § 1291. 2

1 References to “A. __” are to pages of the Appendix Plaintiffs


submitted with their Brief. Pages A. 1-46 refer to the Short Appendix
attached to their Brief, and A. 47-387 refers to the Separate Appendix.
References to “R. __” are to the District Court docket entry numbers.

2 The jurisdictional statement on page 1 of Appellants’ Brief cited


the record entry for the judgment but did not specifically state the date
the District Court entered judgment. Thus, under Circuit Rule 28(a),
1
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STATEMENT OF THE ISSUES

1. Whether the Amended Complaint fails to allege facts

sufficient to state a plausible claim under the FLSA against the

University of Pennsylvania (“Penn”) based on the absence of an

employment relationship arising from participation in NCAA

interscholastic athletics.

2. Whether the Amended Complaint fails to allege facts

sufficient to raise a plausible claim under the FLSA that two Penn

student-athletes were employed by the NCAA or schools they did not

attend and thus fails to establish Article III standing against such

defendants.

3. Whether Penn student-athletes Gillian Berger and Taylor

Hennig waived or forfeited the opportunity for further amendment of

their Amended Complaint.

STATEMENT OF THE CASE

Appellant student-athletes Gillian Berger and Taylor Hennig

participated on the Penn NCAA Division I Women’s Track and Field

team during the relevant time period. Am. Compl. ¶¶ 26, 34, 68, 76 (A.

that jurisdictional statement is not complete. This deficiency is noted


only because Circuit Rule 28(b) affirmatively requires this statement.

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13, 19-20; R. 119). In their Amended Complaint, Berger and Hennig

allege that they were “employed” by Penn as unpaid student-athletes,

covered “employees” within the meaning of the FLSA, 29 U.S.C. § 201,

et seq., and subject to the FLSA’s minimum wage provisions. Id. at ¶¶

26-27, 34-35. 81, 83-84 (A. 13, 23-24; R. 119). Berger and Hennig allege

that the “crux” of their Amended Complaint “is the different, and better,

treatment that NCAA Division I Member Schools afford student

participants in work study part-time employment, as compared to

treatment of student athletes pursuant to NCAA bylaws.” Id. ¶ 2 (A. 8;

R. 119). Berger and Hennig bring their action as a putative collective

action under Section 16(b) of the FLSA, 29 U.S.C. §216(b), on behalf of

themselves and other “similarly situated” students who participated in

NCAA Division I interscholastic athletics, and allege that the putative

collective members were “employees of their respective Defendant

NCAA Division I Member Schools.” Id. at ¶¶ 12, 40 (A. 10, 14; R. 119).

The Amended Complaint does not allege that Appellee NCAA or the

other Appellee Division I Member Schools jointly employed the

Appellant student-athletes or any other putative collective members

who did not attend their particular schools. See Feb. 16, 2016 Entry on

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Motions to Dismiss and Related Motions at 4-5 (A. 32-33; R. 238) (“Slip

Op.”) (also available at 2016 U.S. Dist. LEXIS 18194); Am. Compl. ¶¶

26, 34, 83-84 (A. 13, 23-24; R. 119).

Pursuant to Rules 12(b)(1) and 12(b)(6), multiple Motions to

Dismiss were filed by four Defendant groups, including the

Littler/Constangy group (NCAA and 90 Defendant schools filing this

brief), the Jackson Lewis group (30 Defendant schools), the Ogletree

group (Defendants Duke University and Wake Forest University), and

Quinnipiac University. (R. 173-75, 178-80, 182-83). The

Littler/Constangy group asserted that Berger and Hennig (1) lacked

standing to sue the NCAA or schools that they did not attend; and (2)

failed to state a plausible claim for relief under the FLSA because they

had not alleged any facts supporting their allegation that their athletic-

related activities were actually “work” or that any other school or the

NCAA was their “employer” or “joint employer” within the meaning of

the FLSA. Littler/Constangy Mot. to Dismiss at 3-4, 7-25 (R. 183). The

Littler/Constangy group also moved to strike allegations regarding

Plaintiffs’ counsel’s pre-litigation attempts to settle the claims of the

4
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original Named Plaintiff and putative class members.3 Id. at 4 (R. 183);

see also Am. Compl. ¶¶ 11, 59-67 (A. 10, 19-21; R. 119).

On February 16, 2016, the District Court granted the Motions to

Dismiss. (A. 28-45; R. 238). First, the District Court dismissed without

prejudice Plaintiffs’ claims against all Defendants other than Penn for

lack of jurisdiction because “the only fair reading of the Amended

Complaint is that the Plaintiffs are alleging that they are employees of

only Penn, not the other Defendants.” Slip Op. at 5. (A. 32; R. 238).

Second, the District Court dismissed with prejudice Plaintiffs’ claims

against Penn after analyzing the “economic reality” of the relationship

between Penn and Berger and Hennig and the Department of Labor’s

Field Operation Handbook provisions excluding college student

“interscholastic athletics” from the definition of work and concluding

that, as a matter of law, Appellants were not employees of Penn under

the FLSA. Id. at 18 (A. 45; R. 238). The District Court also held that

3 The original Named Plaintiff, Samantha Sackos, was a University


of Houston Women’s Soccer player. In the Amended Complaint, Sackos
was replaced by Plaintiffs Berger, Hennig, and Lauren Anderson (who
does not join this appeal) because the University of Houston and 221
other public university Defendants were voluntary dismissed by
Plaintiffs’ counsel due to their “potential” Eleventh Amendment
sovereign immunity to private FLSA suits. (R. 119-3).

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any further amendment would be futile and entered judgment in Penn’s

favor. Id.; see also (R. 239). Finally, the District Court granted the

Littler/Constangy group’s motion to strike Amended Complaint

paragraphs 11 and 59-67 because they were irrelevant. Slip Op. at 2 (A.

29; R. 238).

SUMMARY OF ARGUMENT

“This appeal presents an issue of some novelty but little

difficulty.” Bennett v. Frank, 395 F.3d 409, 409 (7th Cir. 2005). Berger

and Hennig, who are non-scholarship participants in Penn’s varsity

intercollegiate Women’s Track and Field program, seek classification as

“employees” under the FLSA. See Pls.’ Opp. to Mots. to Dismiss at 4 (A.

50; R. 212). However, this Court should conclude that student-athletes

are not employees, as has every state and federal court to have

considered the question in a variety of contexts. See, e.g., Kemether v.

Pennsylvania Interscholastic Athletics Ass’n, 15 F. Supp. 2d 740, 759

n.11 (E.D. Pa. 1998) (“[n]o federal court has defied common sense by

holding student-athletes to be Title VII employees of their schools or an

athletic association.”). Indeed, the U.S. Department of Labor (“DOL”)

has reached that same common sense conclusion in recognizing that

6
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participation in extracurricular activities such as college

“interscholastic athletics” does not create an employer-employee

relationship under the FLSA and does not constitute “work.” See DOL

Field Operations Handbook (“FOH”), § 10b03(e) (R. 183-2). Appellants’

attempt to rewrite the DOL’s guidance to limit the phrase

“interscholastic athletics” to only “club sports” cannot withstand serious

scrutiny, especially in light of the DOL’s lack of enforcement activity

with respect to college student-athletes in the 20-plus years since

issuing its guidance in October 1993.

As with this Court’s previous determinations under the FLSA that

prisoners are not employees and taxi cab drivers are not employed by

the city that regulates them, no complicated multi-factor balancing test

stretched beyond the context for which it was designed is necessary to

hold that the “economic reality” of the relationship between a university

and its student-athletes is one of an educational institution and

student, not employer and employee. See Callahan v. City of Chicago,

813 F.3d 658, 2016 U.S. App. LEXIS 2667 (7th Cir. 2016) (rejecting

application of Lauritzen multi-factor test designed for independent

7
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contractor/employer inquiry); Vanskike v. Peters, 724 F.2d 806 (7th Cir.

1992) (rejecting application of Bonnette multi-factor test) .

Classifying college student-athletes as “employees” strains the

“common linguistic intuitions” which serve as the “best guide” to the

meaning of that term under the FLSA. Vanskike, 974 F.2d at 807. It is

undisputed that no employer-employee relationship or liability exists

under the FLSA absent “work,” a term the Supreme Court long ago

defined as activity that must be “controlled and required by the

employer, and pursued necessarily and primarily for the benefit of the

employer and his business.” Tennessee Coal, Iron, & R.R. Co. v.

Muscoda Local No. 123, 321 U.S. 590, 598 (1944). Here, Berger and

Hennig did not plead any facts in their Amended Complaint to support

their conclusory allegations that they performed “work” for Penn or any

other Defendant. Faced with an Iqbal/Twombly challenge to the

sufficiency of their Amended Complaint, Berger and Hennig did not

seek to amend their complaint and steadfastly refused to proffer any

facts to plausibly establish that their participation on the Penn

Women’s Track and Field team is “work,” a prerequisite to FLSA

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liability. Accordingly, they forfeited and waived the opportunity for

further amendment. In any event, such amendment would be futile.

Faced with both their failure and inability to plead the elements of

“work,” Berger and Hennig resort to inapt comparisons to other groups

of students who actually are or may be FLSA employees. They contend

that they should be paid the federal minimum wage because they spent

more time and effort on their training and competition than student

work-study participants spend on part-time employment in dining halls

and dormitories. See Am. Compl. ¶¶ 51-52 (A. 17; R. 119); Appellants’

Br. at 21 (“NCAA-regulated sports are like work-study programs, but on

steroids.”). Berger and Hennig further argue that athletic-related

activities should be evaluated on the same criteria used to determine

whether student interns employed at for-profit private sector employers

are FLSA “employees.” 4 Id.

4 It is undisputed that Penn and the other Appellees are non-profit


institutions or organizations. See, e.g., U.S. v. Brown Univ., 772 F.
Supp. 241, 241-42 (E.D. Pa. 1991) (describing eight Ivy League schools,
including Penn, as “non-profit institutions of higher learning”);
Tomlinson v. Trustees of Univ. of Pa., 164 F. Supp. 353, 354 (E.D. Pa.
1958) (“duly incorporated non-profit corporation”); see also Hennessey v.
NCAA, 564 F.2d 1136 (5th Cir. 1977) (“The NCAA is a non-profit
association”); Pocono Invitational Sports Camp v. NCAA, 317 F. Supp.

9
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But it is improper to lump together student-athletes, student-

work study participants, and student interns at for-profit private sector

employers simply because they are all “students.” The “economic

reality” of the school-student relationship is markedly different for each

group of students.

Student-athletes participate in intercollegiate athletics as part of

an overall educational program “without promise or expectation of

compensation but solely for their personal purpose or pleasure” and in

pursuit of their own interests and achievement. Walling v. Portland

Terminal Co., 330 U.S. 148, 152 (1947). In contrast, student work-

study participants’ activities are indistinguishable from the same type

of work they could perform at off-campus restaurants and retail

establishments. Serving tables and operating cash registers do not

become “educational” simply because they are performed on campus.

Work-study students engaging in part-time employment on college

campuses does not mean their work is done in an “educational setting.”

Student-athletes such as Berger and Hennig are also not “interns” in

any common sense understanding of that term because, in contrast to

2d 569, 572 (E.D. Pa. 2004) (NCAA “is a non-profit, voluntary


unincorporated association”).

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interns, they are not engaged in “practical training” related to their job

or career. See, e.g., Black’s Law Dictionary (8th ed. 2004) (an intern is

“[a]n advanced student or recent graduate who is apprenticing to gain

practical experience before entering a specific profession.”); cf. Portland

Terminal, 330 U.S. at 149 (“course of practical training to prospective

yard brakemen” does not create FLSA employment relationship).

In short, as the District Court correctly found, the criteria

developed for determining the employee status of for-profit private

sector interns were not designed to apply to student-athletes and “fail to

capture the true nature of the relationship” in an “educational setting”

between Penn and its student-athletes. Slip Op. at 8-9, 15 (A. 35-36, 42;

R. 238).

Finally, if the Court affirms the District Court’s judgment in favor

of Penn, it need not reach the issue of whether Berger and Hennig had

standing to sue the NCAA or other schools that they attended. But on

that issue, Berger and Hennig fail to allege a plausible claim that the

NCAA and schools they did not attend were their joint employers. That

failure cannot be cured because they cannot plausibly allege their

athletic activities were “required by” and “pursued necessarily and

11
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primarily for the benefit of” these entities. See 29 C.F.R. § 785.7. In

other words, joint employment requires that the subject activities are

“work” for each joint employer. However, Berger and Hennig cannot

plausibly allege that the NCAA or other schools required them to

practice or compete at Penn.

STANDARD OF REVIEW

A district court’s dismissal of a complaint under Fed. R. Civ. P.

12(b)(1) or 12(b)(6) is a legal determination which this Court reviews de

novo. Charleston v. Bd. of Trustees of Univ. of Ill. at Chicago, 741 F.3d

769, 772 (7th Cir. 2013); Slaney v. International Amateur Athletic

Found., 244 F.3d 580, 588 (7th Cir. 2001). “An appellate court may

affirm the district court’s dismissal on any ground supported by the

record, even if different from the grounds relied upon by the district

court.” Slaney, 244 F.3d at 597 (citation omitted).

12
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ARGUMENT

I. Appellant Student-Athletes Did Not (And Cannot)


Plead Sufficient Facts To Raise A Plausible Claim
That An Employer-Employee Relationship Existed
Between Penn And Them

A. Legal Standards on Motion to Dismiss

The Court must “take as true all facts alleged in the complaint”

and “draw all reasonable inferences from those facts” in Appellants’

favor. Han v. United Continental Holdings, Inc., 762 F.3d 598, 600 (7th

Cir. 2014) (citation omitted). “Viewing the facts in this light, dismissal

is appropriate if Appellants fail to ‘state a claim to relief that is

plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). “To state a claim for relief, a complaint must provide more than

‘abstract recitations of the elements of a cause of action or conclusory

legal statements.’” Charleston, 741 F.3d at 772 (7th Cir. 2013) (quoting

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)). “A complaint must

allege facts to support a cause of action’s basic elements; the plaintiff is

required to do at least that much.” Adams v. City of Indianapolis, 742

F.3d 720, 728 (7th Cir. 2014). “[A] plausible claim must include ‘factual

content’ sufficient to allow the court ‘to draw the reasonable inference

13
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that the defendant is liable for the misconduct alleged.’” Charleston, 741

F.3d at 772 (quoting Iqbal, 556 U.S. at 678).

“[A]llegations in the form of legal conclusions are insufficient to

survive a Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co.,

Inc., 694 F.3d 873, 885 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 678).

“Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

“Where a complaint pleads facts that are ‘merely consistent with’ a

defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007) (internal quotation marks omitted)).

B. An FLSA Employee-Employer Relationship Only


Exists if “Work” Is Performed

“[L]iability under the FLSA is predicated upon an employer-

employee relationship.” White v. Classic Dining Acquisition Corp.,

No. 1:11-cv-712-JMS-MJD, 2012 U.S. Dist. LEXIS 52215, *6 (S.D. Ind.

Apr. 13, 2012); see also Patel v. Wargo, 803 F.2d 632, 635 (11th Cir.

1986) (“the [FLSA] premises liability on an employer-employee

relationship”); Solis v. Intern. Detective & Protective Serv., Ltd., 819 F.

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Supp. 2d 740, (N.D. Ill. 2011) (“Only employer-employee relationships

fall under the FLSA.”) (citing 29 U.S.C. § 207).

Under the FLSA, plaintiffs bear the burden of proving they

performed “work” for which they were not properly compensated. Kellar

v. Summit Seating Inc., 664 F.3d 169, 173 (7th Cir. 2011). As this Court

has explained, the FLSA tautologically “defines an employee simply as

‘any individual employed by an employer.’ 29 U.S.C. § 203(e)(1). An

‘employer’ is defined to include ‘any person acting directly or indirectly

in the interest of an employer in relation to an employee.’ 29 U.S.C. §

203(d). To ‘employ includes to suffer or permit to work.’ 29 U.S.C. §

203(g).” Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1534 n.5 (7th

Cir. 1987). 5 In other words, absent “work,” there can be no employer-

employee relationship. See FOH § 10b09(a) (“The subject-matter of the

employment relationship must be work or its equivalent.”).

Although the prerequisite employment relationship for FLSA

liability is defined in terms of “work,” this Court has recognized that

“the meaning of the term ‘work’ is not defined by the Act.” Sehie v. City

5 To establish that a defendant “suffered or permitted work,” a


plaintiff must show that the defendant had “actual or constructive
knowledge” of her work. Kellar, 664 F.3d at 177.

15
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of Aurora, 432 F.3d 749, 751 (7th Cir. 2005) (citations omitted). The

Supreme Court and the DOL have made clear, however, that “work”

must be “‘controlled and required by the employer, and pursued

necessarily and primarily for the benefit of the employer and his

business.’” 29 C.F.R. § 785.7 (26 Fed. Reg. 190, Jan. 11, 1961, as

amended at 76 Fed. Reg. 18859, Apr. 5, 2011) (quoting Tennessee Coal,

Iron, & R.R. Co., 321 U.S. at 598); see also Sehie, 432 F.3d at 751.

C. Appellant Student-Athletes Did Not Plead Any


Facts to Support Their Conclusory Allegations
that They Performed “Work” for Penn

The Amended Complaint fails to set forth a claim on which relief

may be granted that is “plausible on its face.” Iqbal, 556 U.S. at 678. It

relies exclusively on conclusory legal statements, including that athletic

activities engaged in by Berger and Hennig were “work” and that the

NCAA and Division I member schools conspired to violate the FLSA,

but these allegations cannot satisfy even the liberal pleading standard

of Rule 8(a)(2). See Am. Compl. ¶¶ 1, 8, 56, 68-79, 85 (A. 7, 9, 18, 22-24;

R. 119). Berger and Hennig repeatedly offer in their Amended

Complaint only legal conclusions that student-athletes were “employed”

by their respective educational institutions and that they were “suffered

16
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or permitted to work.” But they allege no facts supporting their

contention that their own athletic-related activities are actually “work”

as defined in the DOL regulations. Rather than actually allege or even

proffer such facts in the District Court, Berger and Hennig made the

conclusory argument that, because college work-study participants are

“employees” under the FLSA, then so too are student-athletes. Id. ¶¶ 4-

7 (A.8; R. 119); see also Pls.’ Opp. at 1-2 (A. 47-48; R. 212). However,

under clear Supreme Court precedent set forth in Iqbal, 556 U.S. at 678

and Twombly, 550 U.S. at 555-57, these “labels and conclusions” or

“formulaic recitation of the elements of a cause of action will not do.”

For example, in Ash v. Anderson Merchandisers, LLC, 799 F.3d

957, 961-62 (8th Cir. 2015), cert. denied, 136 S. Ct. 804 (2016), the

Eighth Circuit affirmed a Rule 12(b)(6) dismissal of plaintiffs’ FLSA

claims because the only allegation as to who employed them was

“simply a restatement of the legal test used to determine whether

certain entities constitute a joint employer for the purpose of civil rights

litigation.” Plaintiffs did not “include any facts describing the ‘economic

reality’ of their employment” that would allow an inference that

defendants were their employer. Id. “Without any facts to support their

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allegation, the complaint contained only the recitation of a legal

conclusion, and a mere legal conclusion is not enough to allege an

employee-employer relationship as required for an FLSA claim.” Id.

Here, the Amended Complaint contains no factual allegations

concerning either the “primary benefit” or “required by the employer”

elements of “work.” See 29 C.F.R. § 785.7. Instead, the “work”

allegations are long on “threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements” (e.g., “worked,”

“unpaid labor,” and “suffered or permitted”), and short on alleged “facts”

showing student-athletes’ voluntary intercollegiate sports activities

plausibly satisfy the Tennessee Coal definition of “work.” Iqbal, 556 U.S.

at 678; see Am. Compl. ¶¶ 39, 42, 68-69, 76-77, 85 (A. 14-15, 22-24; R.

119); cf. Ash, 791 F.3d at 961 (complaint “failed to set forth any facts to

support the legal conclusion that [defendants] were their employer,

instead providing only ‘labels and conclusions’ and ‘a formulaic

recitation of the elements’ of their claim.”).

Notably, while Berger and Hennig conclusorily contend that

Appellees “benefitted from [] the unpaid labor of Plaintiff and/or

members of the Student Athlete Collective” (Am. Compl., ¶ 39) (A. 14;

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R. 119), they do not allege that their own time spent on track and field-

related activities was “pursued necessarily and primarily for the benefit

of” the NCAA, Penn, or any other of the Division I Member schools that

they did not attend. See Tenn. Coal, Iron, & R.R. Co., 321 U.S. at 598

(emphasis added).

Nor could they plausibly allege such facts. Indeed, Berger and

Hennig freely acknowledge in their opening brief that, in their

Opposition to the Motions to Dismiss, they elaborated on “the range of

college supervision of activities, from student-run groups (minimal or

no, involvement) to work study and NCAA-regulated sports (strict

supervision by full-time college staff employed to so supervise), relevant

to student employee status.” They also “thoroughly discussed

differences between student-run groups and NCAA-regulated sports.”

Appellants’ Br. at 8, 35 n.20.6 Thus, Berger and Hennig elaborated on

just about everything except that which is required to state a plausible

6 See Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th
Cir. 1984) (“However, it is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss. Similarly,
consideration of a motion to dismiss is limited to the pleadings. Thus, it
may have been questionable for the district court to have relied on the
plaintiffs’ briefs to embellish the conclusory allegations of the
complaint.”) (citations omitted).

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claim. What they did not (either in their Opposition or Appellants’

Brief) and cannot elaborate upon is how their own athletic-related

activities meet the “primary benefit” element of the Tennessee Coal

definition of “work,” leaving unanswered the argument confronting

them in Appellees’ Motions to Dismiss.

Berger and Hennig further fail to allege that their activities were

“required” by Penn (or any other Appellee, including the NCAA).

Indeed, it would be absurd to allege that the NCAA or any of the schools

they did not attend required them to practice or participate in

competitions.

In its opinion, the District Court correctly observed that

“generations of Penn students have vied for the opportunity to be part

of that revered tradition [of amateurism in college sports] with no

thought of any compensation. . . . Indeed, millions of Americans

participate in amateur sports in countless contexts; they do so for

myriad reasons, none of them by definition involving monetary

compensation, but all of them, it is fair to assume, involving benefit of

some sort to the participants—enough to justify the amount of effort the

participants choose to put into it.” See Slip Op. at 16 (footnote omitted)

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(A. 43; R. 238). This observation is fully consistent with the Supreme

Court’s acknowledgement in Portland Terminal that the FLSA’s

“purpose as to wages was to insure that every person whose

employment contemplated compensation should not be compelled to sell

his services for less than the prescribed minimum wage.” 330 U.S. at

152 (emphasis added). Thus, “[t]he definition of ‘employ’ is not so broad

as to include those individuals ‘who, without any express or implied

compensation agreement, might work for their own advantage on the

premises of another.’” Emanuel v. Rolling in the Dough, Inc. No. 10 C

2270, 2012 U.S. Dist. LEXIS 166206, *10-11 (N.D. Ill. Nov. 21, 2012)

(quoting Portland Terminal). 7 By any objective measure, 8 Berger and

Hennig have not alleged and cannot plausibly allege that they

7 See, e.g., Hallisey v. Am. Online, Inc., No. 99-CIV-3785 (KTD),


2006 U.S. Dist. LEXIS 12964, *16 (S.D.N.Y. Mar. 10, 2006) (“Whether
Plaintiffs had an express or implied expectation of compensation is a
crucial inquiry” into volunteer status).

8 See Brown v. New York City Dep’t of Educ., 755 F.3d 154, 166 (2d
Cir. 2014) (assessing volunteer status using “an objectively reasonable
expectation of compensation”); Purdham v. Fairfax County Sch. Bd.,
637 F.3d 421, 428 (4th Cir. 2011) (“we review the objective facts
surrounding the services performed to determine whether the totality of
the circumstances establish volunteer status, or whether, instead, the
facts and circumstances, objectively viewed, are rationally indicative of
employee status”) (internal quotation and citation omitted).

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“contemplated compensation” under the FLSA (i.e., minimum wage)

when they joined the Penn Women’s Track and Field team. Indeed, it is

undisputed that, at the time they joined the team, Berger and Hennig

were fully aware that they would not be paid for their participation.

In summary, there are no factual allegations (or even

“elaborations”) supporting conclusory statements by Berger and Hennig

that they “worked as an unpaid student athlete on the Penn Women’s

Track and Field roster.” Am. Compl. ¶¶ 68, 76 (A. 23-24; R. 119). Absent

such facts, this Court cannot “infer more than the mere possibility of

misconduct,” Iqbal, 556 U.S. at 679. Thus, the Amended Complaint

stops well “short of the line between possibility and plausibility of

‘entitlement to relief,’” Twombly, 550 U.S. at 557. Accordingly, the

District Court’s dismissal with prejudice should be affirmed.

D. The District Court Correctly Concluded that the


Economic Reality is that No Employer-Employee
Relationship Exists Between Penn and Appellant
Student-Athletes

While the Supreme Court has stated that the term “employee” as

used in the FLSA is to be broadly construed, it has recognized that the

term “does have its limits” and those limits must be defined in

accordance with “economic reality.” Tony & Susan Alamo Found. v.

22
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Sec’y of Labor, 471 U.S. 290, 295, 301 (1985); Vanskike, 974 F.2d at 807.

This Court has explained that “status as an ‘employee’ for purposes of

the FLSA depends on the totality of circumstances rather than on any

technical label” and that “courts must examine the ‘economic reality’” of

the relationship. Vanskike, 974 F.2d at 808 (citations omitted); see also

Lauritzen, 835 F.2d at 1534 (“In seeking to determine the economic

reality of the nature of the working relationship, courts do not look to a

particular isolated factor but to all the circumstances of the work

activity.”) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 730

(1947)).

In the absence of a statutory definition of “employee,” courts have

found “it is permissible to draw upon ‘common linguistic intuitions’” to

guide the analysis. Steelman v. Hirsch, 473 F.3d 124, 128 (4th Cir.

2007) (quoting Vanskike, 974 F.2d at 807); see also Tennessee Coal, Iron

& R.R. Co., 321 U.S. at 598 (“we cannot assume that Congress here was

referring to work or employment other than as those words are

commonly used”). “[W]hen relationships have deviated from the

traditional understanding of employment in fundamental ways, the

Supreme Court has refused to shoehorn them into the [FLSA].”

23
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Steelman, 473 F.3d at 129; see, e.g., Portland Terminal, 330 U.S. at 152

(FLSA does not apply to volunteers who “without promise or

expectation of compensation, but solely for their personal purpose or

pleasure, worked in activities carried on by other persons either for

their pleasure or profit” or to those who “without any express or implied

compensation agreement, might work for their own advantage on the

premises of another.”). Indeed, in Portland Terminal, the Supreme

Court recognized that “[o]therwise, all students would be employees of

the school or college they attended, and as such entitled to receive

minimum wages.” 330 U.S. at 152.

In order to guide the “economic reality” inquiry, this Court and

other courts of appeal have developed multi-factor considerations for

particular FLSA employer-employee relationship issues. See, e.g.,

Lauritzen, 835 F.2d at 1536-38 (seven open-ended factors to help courts

choose between characterizing migrant laborers as employees or as

independent contractors); Karr v. Strong Dectective Agency, Inc., 787

F.2d 1205, 1207 (7th Cir. 1986) (three factors to consider for existence of

joint employer relationship); see also Brown, 755 F.3d at 167 (Second

Circuit rejecting suggestion “that there is a single ‘economic realities’

24
Case: 16-1558 Document: 24 Filed: 06/14/2016 Pages: 86

test consisting of uniform factors” and recognizing application of

“several variations of economic reality tests as best suited to particular

situations.”); Barfield v. NYC Health & Hosps. Corp., 537 F.3d 132, 142

(2d Cir. 2008) (“In assessing the ‘economic reality’ of a particular

employment situation, we have identified different sets of relevant

factors based on the factual challenges posed by particular cases.”).

However, this Court has not hesitated to discard multi-factor

standards for employment relationships where those criteria make no

sense for the particular situation at hand. See, e.g., Callahan, 2016 U.S.

App. LEXIS 2667, at *8-9 (rejecting application of Lauritzen factors

where issue was not choice between employment and independent

contractor status but whether extensive government regulation makes

the government an employer of the regulated parties); Vanskike, 974

F.2d at 809 (rejecting four-factor test used by other courts of appeal for

prisoner FLSA cases where the issue was not which entity was an

employer, but whether an employment relationship existed at all and

where the relationship between parties did not “stem from any

remunerative relationship or bargained-for exchange of labor for

consideration”).

25
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Indeed, as one district court has noted, “in certain contexts,

application of a multi-factor test can cause a court to miss the forest for

the trees” and “in those cases, the economic reality test must be applied

at a ‘higher level of generality,’ with attention to whether the case

involves the kind of employment relationship Congress had in mind

when it enacted the FLSA.” Doyle v. City of New York, 91 F. Supp. 3d

480, 486-87 (S.D.N.Y. 2015) (citing and quoting Danneskjold v.

Hausrath, 82 F.3d 37, 42-43 (2d Cir. 1996) and citing Vanskike, 974

F.2d at 809-10).

As the District Court correctly recognized, this is such a case. As

explained in more detail in Sections E & F, infra, in a variety of

circumstances, every court and agency to address this employer-

employee issue—including the U.S. Department of Labor—has

concluded that student-athletes are not employees.

1. The comparison to work-study participants


is inapt

It is not surprising that Berger and Hennig have not pleaded and

cannot plead facts showing that they performed “work” for Penn. As the

District Court cogently noted, their makeshift theory of FLSA liability

is “essentially a fairness argument” premised on the notion that NCAA

26
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Division I Member Schools afford student participants in work-study

part-time employment programs “different, and better, treatment” than

student-athletes. Slip Op. at 6 (A. 33; R. 238); see Am. Compl. ¶ 2 (A. 8;

R.119). In other words, Berger and Hennig contend that because

“‘students who work at food service counters or sell programs or usher

at athletic events, or who wait on tables or wash dishes in dormitories,’

are recognized, and paid, as temporary employees of NCAA Division I

Member Schools under the FLSA,” 9 then so too must student-athletes

be paid. See Am. Compl. ¶ 4 (quoting FOH § 10b24(b) (Oct. 20, 1993))

(A. 8; R. 119). The District Court properly rejected this “fairness”

argument as missing the mark: “the question is not whether the

Plaintiffs, as student athletes, are ‘deserving’ of employee status, but

rather whether Congress intended for the FLSA to apply to them.” Slip

Op. at 6 (footnote omitted) (A. 33; R. 238); see also Tony & Susan Alamo

Found., 471 U.S. at 296 (FLSA to be construed “consistent with

congressional direction”); Vanskike, 974 F.2d at 811 (finding Congress

did not intend FLSA to cover work performed by prisoners).

9 The term “temporary employee” has no legal significance under


the FLSA, which simply covers “employees” and does not distinguish
between “temporary” and “regular” employees.

27
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The analogy drawn by Berger and Hennig between student work-

study participants and student-athletes is illogical and implausible. No

multi-factor test is required to conclude that college student work-study

participants are FLSA “employees.” Work study participants’ activities

obviously meet the Tennessee Coal definition of “work.” Their “duties

are not part of an overall educational program” and they “receive some

compensation.” FOH § 10b24(a) (R. 183-2). Berger and Hennig cannot

reasonably contend otherwise. Further, such work-study duties are

obviously for the primary benefit of the school.

In contrast, the Supreme Court has recognized that “one of the

NCAA’s fundamental policies is ‘to maintain amateur intercollegiate

athletics as an integral part of the educational program and the athlete

as an integral part of the student body.’” National Collegiate Athletic

Ass’n v. Tarkanian, 488 U.S. 179, 183 (1988) (citation omitted); see also

Banks v. National Collegiate Athletic Ass’n, 977 F.2d 1081, 1089 (7th

Cir. 1992) (quoting same language from NCAA constitution);

McCormack v. National Collegiate Athletics Ass’n., 845 F.2d 1338, 1345

(5th Cir. 1988) (“The goal of the NCAA is to integrate athletics with

academics.”). Athletics has long been considered an integral part of the

28
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American collegiate education. See, e.g., W.L. Dudley, Athletic Control

in School and College, 11 The Sch. Rev. 95, 95 (1903) (“The principal

object of education” is to prepare students “to be better citizens,” and

“athletic sport” is “a powerful factor in the physical and moral

development of youth.”). Much learning in college occurs outside the

classroom, through participation in extracurricular activities such as

dramatics, student publications, glee clubs, bands, choirs, debating

teams, and radio stations, as well as intercollegiate athletics. See, e.g.,

Robert J. Sternberg, College Athletics: Necessary, Not Just Nice to Have,

NACUBO Business Officer Magazine (Sept. 1, 2011) (“done right,

participation in competitive athletics is leadership development....

Students can learn as many lessons about leadership and life from a

great coach as they can from a great professor.”).

Berger and Hennig overreach in arguing that the District Court

“[r]elied upon . . . the assumption that Plaintiff-Appellants can

voluntarily waive their entitlement to wages under the FLSA.”

Appellants’ Br. at 14. The District Court made no such assumption.

Further, recognition that the FLSA does not cover participation in

intercollegiate athletics neither creates an “amateurism exception” to

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the FLSA, nor works as a waiver of FLSA rights. See id. at 13-16.

Rather, it properly recognizes that, with respect to their participation

on the Penn Women’s Track and Field team, the true “economic reality”

of the relationship between Penn and Berger and Hennig is one of

educational institution and student, not employer and employee. See,

e.g., Shepard v. Loyola Marymount Univ., 102 Cal. App. 4th 837, 845

(Cal. App. 2002) (NCAA rules incorporated into scholarship agreement

“clearly provide that plaintiff was not a school employee”). Such a

finding fully considers these student-athletes’ participation “within the

full educational context,” including the undisputed “broad educational

purpose” of Penn and the “educational objectives” of intercollegiate

athletics. Marshall v. Regis Educational Corp., 666 F.2d 1324, 1327-28

(10th Cir. 1981) (finding as a matter of law that residence-hall

assistants were not FLSA employees and “were legally

indistinguishable from athletes and leaders in student government who

received financial aid”). 10

10 Berger and Hennig concede that resident-hall assistants are not


employees under the FLSA. See Appellants’ Br. at 27 n.11.

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2. The District Court correctly concluded that


a multi-factor analysis applicable to student
interns in private sector for-profit
employment settings does not apply to
college student-athletes

Berger and Hennig principally argue that the District Court did

not apply the proper test for determining “student employee status”

under the FLSA, as enunciated last year by the Second Circuit in Glatt

v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015), as

amended, 811 F.3d 528 (2016). Appellants’ Br. at 6. Berger and Hennig

contend that instead of examining the “economic reality” of their

relationship with Penn, as required by the Supreme Court and this

Court, the District Court should have resorted to the Second Circuit’s

non-exhaustive set of seven considerations for student interns at for-

profit private sector employers to determine if they are employees under

the FLSA. Id. at 11-12. This contention illustrates the danger of trying

to shoehorn a multi-factor test for a specific employer-employee

situation (student interns in for-profit, private sector employer settings)

into another situation (student-athletes in an educational setting)

where it makes no sense. That is a temptation this Court has

steadfastly resisted, as the District Court properly resisted here. See,

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e.g., Callahan, 2016 U.S. App. LEXIS 2667, at *8-9; Vanskike, 974 F.2d

at 809.

First, participation in intercollegiate athletics is plainly not an

“internship” and such classification defies “common linguistic intuition.”

Vanskike, 974 F.2d at 807. For example, Merriam-Webster defines an

internship as “a period of undergoing practical instruction in one’s job

or career” and gives a usage exemplar of “seeking a summer internship

at a local television station.” See http://www.merriam-

webster.com/thesaurus/internship (last accessed on June 3, 2016); see

also http://www.thefreedictionary.com/internship) (“A student or a

recent graduate undergoing supervised practical training.”) (last

accessed on June 3, 2016). Indeed, Portland Terminal, 330 U.S. at 149,

the Supreme Court decision the DOL Fact Sheet seeks to interpret,

concerned a “course of practical training to prospective yard brakemen.”

Berger and Hennig do not allege that their athletic-related activities in

Women’s Track and Field constitute practical training or instruction for

their job or career, nor can they plausibly do so.

Second, lumping student-athletes, student work-study

participants, and student interns at for-profit private sector employers

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into a single multi-factor analysis merely because they are all

“students” is too facile. That each group includes “students” says

nothing about the “economic reality” of whether there is an employer-

employee relationship under the FLSA in their particular settings. For

example, Berger and Hennig fail to explain how the student work-study

participants, to whom they compare themselves, are engaged in

“practical training” or are “interns” when performing work-study job

duties. Unlike participation in an intercollegiate sport, which is “an

integral part of the educational program,” Tarkanian, 488 U.S. at 183,

work-study is primarily a subsidized federal financial aid program

administered by the U.S. Department of Education with a “broad

purpose . . . to promote part-time employment of students.” See Am.

Compl. ¶ 46 & nn.10-11 (A. 15; R. 119). That such work-study

employment occurs on a college campus does not fairly transform it into

employment “in an educational setting”—for instance, there is no

material difference between waiting on tables or washing dishes in

dormitory dining halls or a “traditional employment setting” of an off-

campus restaurant. See FOH §10b24(b) (R. 183-2). The same holds true

33
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when comparing working at a food service counter at a college athletic

event or at the local McDonald’s. See id.

In analyzing the relevance of the DOL’s six factors for interns

contained in DOL Fact Sheet #71, the District Court correctly

recognized that those factors were “not designed to apply to student

athletes” or address the relevant standard for determining employee

status “in an educational setting.” Slip Op. at 8 (A. 35; R. 238). 11 Rather,

11 On appeal, Berger and Hennig abandon their argument made in


the District Court that the employer-employee relationship should be
analyzed using DOL Fact Sheet #71, a set of six mandatory factors
developed by the DOL to determine if student interns at for-profit,
private sector employers are “employees” under the FLSA.
This abandonment is for good reason, as every court of appeals to
consider the issue has rejected DOL’s six-factor test in Fact Sheet #71
or other guidance incorporating those factors, including the Second
Circuit in Glatt, 811 F.3d at 536. See also Schumann v. Collier
Anesthesia, P.A., 803 F.3d 1199, 1209, 1212 (11th Cir. 2015) (declining
to defer to DOL test because “we do not find it persuasive” and adopting
Glatt factors and primary beneficiary test); Laurelbrook Sanitarium &
Sch., Inc., 642 F.3d 518, 525 (6th Cir. 2011) (finding DOL test “to be a
poor method for determining employee status in a training or
educational setting” and adopting primary benefit test); McLaughlin v.
Ensley, 877 F.2d 1207, 1209, 1210 n.2 (4th Cir. 1989) (declining to rely
upon DOL test and adopting primary beneficiary test); see also Blair v.
Wills, 420 F.3d 823, 829 (8th Cir. 2005) (finding boarding school
attendee’s activities were not “work” under Tennessee Coal because
plaintiff’s “chores were an integral part of the educational curriculum”
and “were primarily for the students’, not the [schools’], benefit”); Reich
v. Parker Fire Protection Dist., 992 F.2d 1023, 1026 (10th Cir. 1993)
(finding six criteria “relevant but not conclusive” and “there is nothing

34
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DOL Fact Sheet #71, on its face, “expressly addresses internship

programs that take place in the facilities of for-profit private sector

employers,” which are “a traditional employment setting, not an

educational setting.” Id. at 9 (A. 36; R. 238). The Second Circuit

similarly expressly limited the Glatt “primary beneficiary” test and non-

exhaustive list of considerations to for-profit private sector employment

settings. Glatt, 811 F.3d at 536 n.2 (“Like the parties and amici, we

limit our discussion to internships at for-profit employers.”). As the

District Court correctly observed, “there is not even one set of

immutable factors that applies to all interns in all situations, and there

is certainly not one test that applies equally to interns and student

athletes.” Slip Op. at 15 (A. 42; R. 238).

Third, Berger and Hennig misapprehend the District Court’s

reliance on Vanskike. The District Court did not deem student-athletes

“comparable to prisoners.” See Appellants’ Br. at 7, 12. Rather, the

District Court’s point plainly was that, as in Vanskike, it was

in Portland Terminal to support an all or nothing approach”); Donovan


v. American Airlines, Inc., 686 F.2d 267, 271-72 (5th Cir. 1982)
(endorsing district court’s “balancing analysis” of “analyzing the
‘relative benefits flowing to trainee and company during the training
period.’”) (citation omitted)

35
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appropriate to adopt a “flexible” approach to determine whether Berger

and Hennig are “employees” instead of relying upon a multi-factor test

such as that used in Glatt that “fail[s] to capture the true nature of the

relationship” between Penn and its student-athletes. Slip Op. at 15

(quoting Vanskike, 974 F.2d at 809) (A. 42; R. 238). Indeed, in Glatt, the

Second Circuit emphasized that its primary beneficiary test “accords

courts the flexibility to examine the economic reality as it exists

between the intern and the employer.” Glatt, 811 F.3d at 536; see also

Barfield, 537 F.3d at 141-42 (employment for FLSA purposes is “a

flexible concept to be determined on a case-by-case basis by review of

the totality of the circumstances”).

Fourth, it is immaterial to the “work” analysis how many hours

Berger and Hennig spent on their athletic-related activities or how

“rigorous” those efforts were. See Appellants’ Br. at 21. Whether an

activity is “work” does not depend on the level of exertion. See 29 C.F.R.

§ 785.7. Similarly, the amount of supervision is not determinative of

whether an activity is “work” in the first place. See Appellants’ Br. at 22

(comparing level of supervision of student-athletes and work-study

participants). Thus, for example, a recognized “volunteer” in a soup

36
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kitchen would not become an “employee” if there were shift schedules,

direction and supervision as to the performance of their duties, and

strict rules regarding personal hygiene, fraternization with guests, and

proper attire.

In summary, Appellants’ argument tries to pound the proverbial

square peg into a round hole. It simply defies common sense to apply

the Glatt considerations designed for student interns at for-profit

private sector employers to determine if student-athletes are FLSA

employees when participating voluntarily in intercollegiate sports. 12

E. The District Court Correctly Concluded that the


Department of Labor Does Not Regard College
Student-Athletes as “Employees” under the FLSA

In its opinion, the District Court correctly found that “[t]he

economic reality of the situation and the DOL’s position on the issue

both point to one conclusion: the fact that Plaintiffs participate in an

12 See Ambrosia Land Investments, LLC. v. Peabody Coal Co., 521


F.3d 778, 781 (7th Cir. 2008) (“We use a common sense approach,
focusing on the ordinary meaning of the statutory language”) (citation
omitted); Smith v. Zachary, 255 F.3d 446, 450 (7th Cir. 2001) (“we note
the obvious: no canon of statutory interpretation requires us to abandon
common sense.”); Lofther v. First Nat’l Bank, 138 F.2d 299, 301 (7th
Cir.1943 ) (applying common sense-based reasoning and authority to
find FLSA plaintiffs were not engaged in interstate commerce).

37
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NCAA athletic team at Penn does not make them employees of Penn for

FLSA purposes.” Slip Op. at 18 (A. 45; R. 238) (emphasis added).

The DOL is the federal agency charged with administering and

enforcing the FLSA. In connection with its oversight of the FLSA, the

DOL has issued its Field Operations Handbook that, among other

things, “provides Wage and Hour Division (WHD) investigators and

staff with interpretations of statutory provisions…” See

http://www.dol.gov/whd/FOH (accessed June 7, 2016). In their Amended

Complaint, Berger and Hennig relied on the FOH. See Am. Compl. ¶ 4

n.1 (citing FOH § 10b24(b)) (A. 8; R. 119). This reliance is most curious

given that the Handbook expressly states that college student-athletes

are not employees under the FLSA and that their participation in

interscholastic athletics does not constitute “work” under the FLSA.

Appellants’ interpretation of the term “interscholastic” as referring to

only “student run Club Sports” cannot withstand serious scrutiny. See

Appellants’ Br. at 18.

1. The DOL Field Operations Handbook


explains that participation in collegiate
interscholastic athletics is not “work”

Section 10b24(a) of the DOL Field Operations Handbook provides:

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University or college students who participate in activities


generally recognized as extracurricular are generally not
considered to be employees within the meaning of the Act. In
addition to the examples listed in FOH 10b03(e), students
serving as residence hall assistants or dormitory counselors,
who are participants in a bona fide educational program, and
who receive remuneration in the form of reduced room or
board charges, free use of telephones, tuition credits, and the
like, are not employees under the Act.
FOH §10b24(a) (emphases added). Section 10b03(e), in turn, provides:

As part of their overall educational program, public or


private schools and institutions of higher learning may
permit or require students to engage in activities in
connection with dramatics, student publications, glee clubs,
bands, choirs, debating teams, radio stations, intramural
and interscholastic athletics and other similar endeavors.
Activities in such programs, conducted primarily for the
benefit of the participants as part of the educational
opportunities provided to the students by the school or
institution, are not “work” of the kind contemplated by [29
U.S.C. § 203(g)] and do not result in an employee-employer
relationship between the student and the school or
institution. Also, the fact that a student may receive a
minimal payment for participation in such activities would
not necessarily create an employment relationship.

FOH §10b03(e) (emphases added). Thus, the same DOL source that

validates the activities of student work-study participants as “work”

specifically excludes “activities in connection with . . . interscholastic

athletics” from the definition of “work.” FOH §§ 10b03(e), 10b24(b).

The DOL’s FOH interpretations routinely receive significant

deference in the courts. These sub-regulatory pronouncements “reflect[]

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the DOL’s official understanding of the FLSA’s requirements” and are

“entitled to a ‘measure of respect’ from the judiciary.” Urnikis-Negro v.

Am. Family Prop. Servs., 616 F.3d 665, 675-76 (7th Cir. 2010) (quoting

Fed. Express Corp. v. Holowecki, 552 U.S. 389, 390 (2008)). The Seventh

Circuit and district courts within the Circuit have repeatedly cited the

FOH as an authoritative source for interpreting the FLSA. See, e.g.,

Driver v. AppleIllinois, LLC, 739 F.3d 1073, 1075 (7th Cir. 2014); Yi v.

Sterling Collision Ctrs., Inc., 480 F.3d 505, 508 (7th Cir. 2007).;

Schaefer v. Walker Bros. Enters., Inc., No. 10 CV 6366, 2014 U.S. Dist.

LEXIS 177157, *8 (N.D. Ill. Dec. 17, 2014) (stating “Courts give

deference to the agency’s interpretation” and finding FOH’s

interpretation “governs this case.”); Kim v. Park, No. 08 CV 5499, 2009

U.S. Dist. LEXIS 51591, *6 n.2 (N.D. Ill. June 16, 2009) (“Although not

entitled to Chevron deference, the Department of Labor’s Field

Operations Handbook has been held to be persuasive and entitled to

some weight in judicial interpretations of the FLSA.”). 13

13 Appellate courts throughout the country likewise look to the FOH


as authoritative. See, e.g., Reich v. Miss Paula’s Day Care Ctr., 37 F.3d
1191, 1194 (6th Cir. 1994) (finding that “[b]ecause the DOL’s Wage and
Hour Administrator is the primary federal authority entrusted with
determining the FLSA’s scope, [his] interpretations, [including the

40
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Accordingly, this Court should follow the DOL’s interpretation of

its own “Hours Worked” regulation, which gives “specificity to a

statutory scheme the Secretary of Labor [is] charged with enforcing and

reflect[]s the considerable experience and expertise the Department of

Labor had acquired over time with respect to the complexities of the

Fair Labor Standards Act.” Gonzales v. Oregon, 546 U.S. 243, 256-57

(2006).14

2. Appellant student-athletes’ interpretation of


“interscholastic athletics” is not plausible

Berger and Hennig attempt to escape the DOL’s clear exclusion of

their athletic-related activities from “work” by arguing that the DOL

FOH,] ‘while not controlling upon the courts by reason of their


authority, do constitute a body of experience and informed judgment to
which the courts and litigants may properly resort for guidance’”)
(citations omitted); Newman v. Advanced Tech. Innovation Corp., 749
F.3d 33, 35, 37 (1st Cir. 2014) (relying on guidance in the FOH as
“persuasive authority”); Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1275 n.65 (11th Cir. 2008) (same); Abhe & Svoboda, Inc. v. Chao,
508 F.3d 1052, 1058-59 (D.C. Cir. 2007) (same).

14 Contrary to Appellants’ position (see Appellants’ Br. at 26), there


is nothing inconsistent with the District Court giving no deference to
FOH Section 10b11, which is “essentially a distillation of the facts
discussed in Portland Terminal,” because “‘an agency has no special
competence or role in interpreting a judicial decision.’” Glatt, 811 F.3d
at 536 (quoting New York v. Shalala, 119 F.3d 1715, 180 (D.C. Cir.
1997)). Further, Section 10b11 plainly applies to student interns and
trainees in traditional employment settings such as the one at issue in
Portland Terminal, and so is inapposite.

41
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intended to exclude only “student-run, interscholastic club sports.”

(Appellants’ Br. at 18). This argument requires writing the phrase “club

sports” into the FOH guidance. 15 However, when read in whole, Chapter

10 of the FOH cannot plausibly be read in such a manner. This Court

should reject the invitation to rewrite it.

(a) The DOL did not exclude NCAA


regulated sports from its guidance on
extracurricular activities

FOH Section 10b24(a) reinforces that “[u]niversity or college

students who participate in activities generally recognized as

extracurricular are generally not considered to be employees.” (R. 183-

2). “Extracurricular” is commonly defined with reference to sports

activities. 16 Indeed, Section 10b24 gives contrasting examples of student

15 The Amended Complaint allegation that the DOL intended to


exclude only club sports is not a “fact” but rather legal argument and
thus is not sufficient to meet their obligations under Iqbal/Twombly to
state a plausible claim for relief. See Am. Complt. ¶ 64 (A. 21; R. 119);
Pls.’ Opp. at 5-6 (“In fact, deductive reasoning suggests that NCAA
regulated sports were clearly not intended to be covered by the DOL
FOH and Defendants have offered no evidence to contradict that fact as
alleged in the Amended Complaint.”) (A. 51-52; R. 212).

16 See, e.g., (http://www.thefreedictionary.com/extracurricular)


(“being outside the regular curriculum of a school or college: Sports and
drama are the school’s most popular extracurricular activities.) (printed
on June 30, 2015) (R. 183-6); (http://www.merriam-
webster.com/dictionary/extracurricular) (“not falling within the scope of

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employees “whose duties are not part of an overall educational

program” and who “work . . . in anticipation of some compensation.” (R.

183-2). Given the contemporaneously issued FOH Section 10b11

governing “trainees and student-trainees,” it is implausible that (1) the

DOL believed intercollegiate student-athletes were employees in 1993;

or (2) the DOL silently rescinded that guidance in 2010 with DOL Fact

Sheet #71 (whose factors long have been included in the FOH, presently

at Section 10b11) without rewriting FOH Section 10b03(e). (R. 183-2).

As the District Court correctly recognized, it is also simply

inconceivable that in 1993 the DOL intended to exclude only

intercollegiate “club sports” from FLSA coverage yet (1) failed to

mention that in any way; (2) failed to state that an employment

relationship existed with respect to NCAA intercollegiate sports in

Section 10b24; and (3) in the more than 20 years since, has never

sought to enforce the FLSA on behalf of student-athletes. See Slip Op.

a regular curriculum; specifically : of or relating to officially or


semiofficially approved and usually organized student activities (as
athletics) connected with school and usually carrying no academic
credit.”) (printed on July 14, 2015) (R. 183-7);
(http://www.oxforddictionaries.com/definition/american_english/extracu
rricular) (“(Of an activity at a school or college) pursued in addition to
the normal course of study: ‘extracurricular activities include sports,
drama, music, chess’”) (printed on June 30, 2015) (R. 183-8).

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at 16 (“Also supporting a finding that student athletes are not

employees for FLSA purposes is the fact that the existence of thousands

of unpaid college athletes on college campuses each year is not a secret,

and yet the Department of Labor has not taken any action to apply the

FLSA to them.”) (citing Yi, 480 F.3d at 510-11 (A. 43; R. 238); id. at 18

(“Given the popularity of NCAA regulated sports, the DOL could not

have contemplated the issue of students engaging in sports on college

campuses without being aware that many of the students engaged in

‘interscholastic sports’ are NCAA athletes. Therefore, it is logical to

infer that if the DOL did not mean to include those athletes, but was

speaking only of athletes engaged in other types of interscholastic

sports, it would have said so.”) (A. 45; R. 238).

Indeed, in Christopher v. SmithKline Beecham Corp., 132 S. Ct.

2156, 2166-70 (2012), the Supreme Court recognized that DOL inaction

could support a determination that an established industry practice is

not unlawful. Here, DOL inaction is consistent with the view that

student-athletes are not employees under the FLSA, as clearly

expressed in the FOH. See id. at 2168 (“While it may be ‘possible for an

entire industry to be in violation of the [FLSA] for a long time without

44
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the Labor Department noticing,’ the ‘more plausible hypothesis’ is that

the Department did not think the industry’s practice was unlawful.”)

(quoting Yi, 480 F.3d at 510-11).

The objection by Berger and Hennig to the District Court’s

inference drawn based on the lack of DOL enforcement is not well-

founded. See Appellants Br. at 25. The District Court’s inference is more

than reasonable when coupled with the DOL’s Handbook that expressly

excludes interscholastic athletics from FLSA coverage. Further,

internships exist at hundreds, if not thousands, of private employers,

making wholesale DOL identification, investigation, and prosecution of

unlawful internships impossible—a constraint not present here, where

it is well known that NCAA Division I student-athletes are not paid for

time spent on athletic-related activities.

(b) The purported differences between


NCAA sports and other extracurricular
activities are irrelevant

Berger and Hennig argue that “it stands to reason that this

reference to ‘interscholastic athletics’ is to student-run, interscholastic

club sports, but not to NCAA-regulated sports.” Appellants’ Br. at 18.

However, this tortured reasoning is based on a flawed, out-of-context

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application of Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 703 (7th

Cir. 2015). In Love, this Court stated, “the employer’s right to control is

the ‘most important’ consideration in ascertaining the existence of an

employer-employee relationship” under Title VII where a

subcontractor’s employee alleged that the contractor was his “indirect

employer.” The Title VII test for an indirect employer where there is no

doubt that “work” is being performed and there is at least one employer

(the direct employer) has no application in determining whether any

employer-employee relationship exists under the FLSA. For the same

reason, Appellants’ reliance on Southern Indiana Gas & Electric Co. v.

United States, 1978 U.S. Dist. LEXIS 7053, at *19 (S.D. Ind. Dec. 22,

1978) (FICA, FUTA, and common law rule for employer-employee

relationship) is misplaced. In any event, there must be “work” to control

before FLSA liability attaches.

In the District Court, Berger and Hennig also argued that the

“differences between activities listed in DOL FOH § 10b03(e) and NCAA

regulated sports” were “indisputable.” Pls.’ Opp. at 9 (A. 55; R. 212).

Although Appellees disagreed below that these differences are

indisputable, this Court need not resolve any of these disputes because

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each of the identified differences, even if accepted as true, is irrelevant

and has no bearing on whether Berger and Hennig have alleged

sufficient facts to establish that their intercollegiate sports activities at

Penn meet the elements of the Tennessee Coal definition of “work.”17

Indeed, as the District Court stated, “[i]f variables like staff oversight,

the availability of [academic] credit, and compulsory attendance were

relevant to the inquiry, it is reasonable to assume that the DOL would

have said so” in FOH Section 10b03(e). Slip Op. at 17 n.14 (A. 44; R.

238).

First, Berger and Hennig contended “[m]ost activities” listed in

Section 10b03(e) “relate to, or supplement, academic degrees” and

“academic credit is sometimes offered for participating in such

activities.” Pls.’ Opp. at 6 (A. 52; R. 212). The qualifier “most” means

that “some” of the listed activities are unrelated to academic degrees

(i.e., debating teams, intramurals, and interscholastic athletics), and

17 Appellants’ extensive reliance upon testimony from a


Northwestern student-athlete should be disregarded because Berger
and Hennig did not attend Northwestern. See Appellants’ Br. at 22-23.
On a more fundamental level, although submitted to the District Court
under the banner of a Notice of Supplemental Authority, the appended
testimony has no precedential or otherwise authoritative value; it is just
the testimony of a witness in an unrelated proceeding.

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thus this premise is irrelevant. 18 Similarly, the availability of academic

credit must be irrelevant if it is only “sometimes” offered. Further,

Berger and Hennig did not and cannot allege that every participant in a

listed activity must be pursuing a related degree in order for that

activity to be excluded from “work.” Indeed, “club sports” would also fail

that criterion under Appellants’ view.

Second, whether an activity is “run by students” or is “subsidized,

in part, by student activities fees and/or participant fees” has no

bearing on whether participation is primarily for the benefit of the

school. See Pls.’ Opp. at 6-7 (A. 52-53; R. 212).

Third, whether full-time university staff members are hired to

supervise any of the listed activities also has no bearing on whether

participation is primarily for the benefit of the school. See id. at 7 (A.

53; R. 212). For example, voluntary student participation in intramural

athletics would not suddenly become “work” if a university staffed and

18 In any event, it is implausible that participation in NCAA sports


has no relevance to a host of degree programs offered by some schools,
including such disciplines as physical education, sports psychology,
sport administration or sport management, kinesiology, exercise
science, athletic training or coaching, dietetics, exercise physiology,
fitness management, or physical therapy.

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supervised a Department of Intramurals that formed leagues, set

schedules, reserved facilities, set playing rules, and paid referees.

Fourth, the extent of regulation of any listed activity also has no

bearing on whether participation is primarily for the benefit of the

school. 19 See id. Control is different than benefit.

19 In the District Court, Berger and Hennig relied upon student club
information publicly available on Penn’s website (see Pls.’ Opp. at 6, 8)
(A. 52, 54; R. 212), but they failed to disclose to the District Court other
relevant information available on the same website that refuted their
“facts” and argument. In reply, Appellees referenced Penn’s “Sports
Club Council Handbook,” which provides for extensive University
administration, supervision, and regulation of Penn club sports,
including myriad rules and procedures governing member eligibility,
obtaining coaches, payment of officials, club sponsorships, compliance
with University standards of conduct (including use of alcohol and
tobacco products, gambling, unsportsmanlike conduct, and hazing),
facility reservations and use, equipment purchases, storage, and
inventory lists, membership dues, fundraising, financial accounts,
appropriate and inappropriate expenditures, purchasing and
reimbursement procedures, use of social media, head injuries, travel,
and publicity and promotion. See Littler/Constangy Reply at 15 n.14 (R.
215). This Sports Club Council Handbook is presently available at
http://www.upenn.edu/recreation/wp-content/uploads/2014/09/SCC-
Handbook-14-15.pdf (last accessed June 3, 2016).
Plainly, student-run club sports at Penn do not operate without
University rules and regulations, as well as significant financial and
operational supervision. Any suggestion that club sports operate free of
such supervision and control at any university would not be credible.
Further, while club sports plainly offer leadership and
developmental opportunities for student participants, so too do
intercollegiate NCAA sports.

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Fifth, the assertion by Berger and Hennig that participation in the

listed activities “cannot be compelled” while “participation in NCAA

regulated sports can be compelled” ignores the DOL’s own guidance in

Section 10b03(e) that “institutions of higher learning may permit or

require” the listed activities. See Pls.’ Opp. at 7 (A. 53; R. 212); FOH §

10b03(e) (R. 183-2). Indeed, in Blair, 420 F.3d at 829, the Eighth Circuit

affirmed a district court’s finding that a boarding school student’s

activities were not “work” under the Tennessee Coal primary benefit

test even though the “chores” at issue were required by the boarding

school. In any event, Berger and Hennig voluntarily chose to participate

on Penn’s track and field team.

Finally, whether records of hours spent on any of the listed

activities are maintained is not probative of whether those activities

actually constitute “work” or who the primary beneficiary of the activity

is. See Appellants’ Br. at 21. Further, the absence of a timesheet would

not convert work to non-work.

In summary, Berger and Hennig have offered no persuasive

reason why this Court should not ascribe the plain and most logical

usage of “interscholastic athletics” to FOH Section 10b03(e) to find

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conclusively, as a matter of law, that participation in Division I sports

does not give rise to an employment relationship.

F. In a Variety of Contexts, Federal and State


Courts Have Consistently Held that Student-
Athletes are not Employees

The DOL’s interpretation that no employer-employee relationship

exists between student-athletes and their universities under the FLSA

is fully consistent with state and federal decisions in both the FLSA and

other contexts involving federal and state law. 20 See, e.g., Kemether, 15

20 In March 2014, a National Labor Relations Board (“Board”)


Regional Director concluded that scholarship football players at
Northwestern University were “employees” under the National Labor
Relations Act (NLRA). See Northwestern Univ., 2014 NLRB LEXIS 221
(N.L.R.B. Mar. 26, 2014). In August 2015, the Board issued an opinion
declining to uphold the Regional Director’s decision and dismissing the
Union’s petition. See Northwestern Univ., 2015 NLRB LEXIS 613
(N.L.R.B. Aug. 17, 2015). The Board declined to assert jurisdiction over
the case, stating that doing so “would not effectuate the policies” of the
NLRA. Id. at *2. The Board explicitly declined to rule on the question of
whether Northwestern scholarship football players were statutory
employees under Section 2(3) of the National Labor Relations Act, 29
U.S.C. § 152(3). Id. at *12. In declining to rule on the question, the
Board stated:

[T]he scholarship players do not fit into any analytical


framework that the Board has used in cases involving other
types of students or athletes. In this regard, the scholarship
players bear little resemblance to the graduate student
assistants or student janitors and cafeteria workers whose
employee status the Board has considered in other cases.

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F. Supp. 2d at 759 n.11 (“[n]o federal court has defied common sense by

holding student-athletes to be Title VII employees of their schools or an

athletic association.”).

For example, in Regis Educational Corp., 666 F.2d at 1328, the

Tenth Circuit found that student residence-hall assistants (“RA’s”) were

not employees within the meaning of the FLSA, a ruling that the DOL

has since incorporated in FOH § 10b24(a), supra. (R. 183-2). Relying on

the Supreme Court’s “economic reality” test, the Tenth Circuit

considered the “circumstances of the whole activity” to determine

whether an employment relationship existed. Regis Educ. Corp., 666

F.2d at 1326. The DOL initially contended RA’s were “employees”

because the college derived an “immediate economic benefit from their

services” which had an impact on the “business” of operating a college.

Id. at 1326, 1327. Berger and Hennig make a similar argument here.

See, e.g., Am. Compl., ¶ 21 (“The NCAA has entered into multi-billion

dollar agreements . . . to broadcast athletic competitions nationally,

including within the District, and multi-million dollar agreements with

other corporate partners and sponsors, through which the NCAA

Id. at *12-13.

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receives funds that it then distributes, from within this District, to

NCAA Division I Member Schools in direct dollars, championships or

services.”) (A. 21; R. 119); Appellants’ Br. at 3-4.

The Tenth Circuit found that the DOL’s position “ignore[d] not

only the broad educational purpose of this private liberal arts college,

but also the expressed educational objectives of the resident assistant

program,” and that “the total program [] must be considered within the

full educational context.” Regis Educ. Corp., 666 F.2d at 1327. The

Tenth Circuit concluded that “the mere fact that the College may have

derived some economic value from the RA program does not override

the educational benefits of the program and is not dispositive of the

‘employee’ issue,” and noted that “RA’s did not displace other employees

whom the College would otherwise have been required to hire.” Id.

Finally, the Tenth Circuit found that RA’s “were legally

indistinguishable from athletes and leaders in student government who

received financial aid” and held that they were not “employees” under

the FLSA. Id. at 1328.

Numerous courts have also found that student-athletes are not

covered “employees” under workers compensation statutes. For

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example, in Rensing v. Indiana State University Board of Trustees, 444

N.E.2d 1170, 1173 (Ind. 1983), the Supreme Court of Indiana rejected a

scholarship student-athlete’s workers compensation claim because the

athlete was a student and not an employee. The court noted,

[a] fundamental policy of the NCAA, which is stated in its


constitution, is that intercollegiate sports are viewed as part
of the education system and are clearly distinguished from
the professional sports business. . . . The fundamental
concerns behind the policies of the NCAA are that
intercollegiate athletics must be maintained as a part of the
educational program and student-athletes are integral parts
of the institution’s student body. An athlete receiving
financial aid is still first and foremost a student.

Id. It further reasoned:

[Plaintiff] was not working at a regular job for the


University. The scholarship benefits he received were not
given him in lieu of pay for remuneration for his services in
playing football any more than academic scholarship
benefits were given to other students for their high scores on
tests or class assignments. Rather, in both cases, the
students received benefits based upon their past
demonstrated ability in various areas to enable them to
pursue opportunities for higher education as well as to
further progress in their own fields of endeavor.
Scholarships are given to students in a wide range of
artistic, academic and athletic areas. None of these
recipients is covered under Ind. Code § 22-4-6-2, supra,
unless the student holds a regular job for the institution in
addition to the scholarship. . . . Scholarship recipients are
considered to be students seeking advanced educational
opportunities and are not considered to be professional

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athletes, musicians or artists employed by the University for


their skills in their respective areas.

Id. at 1174 (emphasis added).21

Further, finding that scholarships are not “wages” that establish

an employment relationship, the Supreme Judicial Court of

Massachusetts held that vicarious liability under the doctrine of

respondeat superior did not apply to a school’s student-athletes.

Kavanagh v. Trustees of Boston Univ., 440 Mass. 195 (Mass. 2003).

There, a student-athlete on an opposing team sued Boston University in

tort after he was punched in a game by one of the school’s players. The

Supreme Judicial Court observed:

The fact that a college or university has facilitated a


student’s ability to attend that institution by providing a
scholarship or other financial assistance does not transform

21 See also State Compensation Ins. Fund v. Industrial Comm’n, 135


Colo. 570 (1957) (rejecting workers compensation claim, reasoning that
a student-athlete is not an “employee”); Waldrep v. Texas Employers
Ins. Assoc., 21 S.W.3d 692, 701 (Tex. App. 2000) (affirming jury verdict
that student-athlete was not an “employee” for workers compensation
claim and noting that many college students receive financial aid based
on their abilities in areas such as music, academics, art and athletics
and “[s]ometimes these students are required to participate in certain
programs or activities in return for this aid.”); Coleman v. Western
Mich. Univ., 125 Mich. App. 35, 42-44 (1983) (applying “economic
realities” test to find scholarship football player injured in practice was
not an “employee” for purposes of workers compensation claim)
(following Rensing).

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the relationship between the academic institution and the


student into any form of employment relationship. While
scholarships may introduce some element of “payment” into
the relationship, scholarships are not wages. Rather,
scholarships pay specific forms of expenses that the student
would incur in attending school -- tuition, books, room and
board -- and thereby provide the student with an education.
Nor does a scholarship student “work for” the school in
exchange for that scholarship.

Id. at 199-200 (emphasis added) (citation to Rensing omitted).

Similarly, a full-scholarship student-athlete alleged to have attacked a

food delivery person was found not to be a state university “employee”

for purposes of asserting personal immunity under an Ohio statute

covering state employees. See Korellas v. Ohio State Univ., 121 Ohio

Misc.2d 16 (Ohio Ct. Cl. 2002).22

22 Courts have also found that, unlike employment, “participation in


intercollegiate athletics is not a property right, but [instead] a privilege
not protected by Constitutional due process safeguards.” Equity in
Athletics, Inc., v. Dep’t of Educ., 675 F. Supp. 2d 660, 681 (W.D. Va.
2009); see also Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352
(9th Cir. Ariz. 1981); Colorado Seminary (University of Denver) v.
National Collegiate Athletic Ass’n., 570 F.2d 320, 321 (10th Cir. 1978);
Gardner v. Wansart, No. 05 Civ. 3351 (SHS), 2006 U.S. Dist. LEXIS
69491, *17 (S.D.N.Y. Sept. 25, 2006); see also NCAA v. Yeo, 171 S.W.3d
863, 865-70 (Tex. 2005) (finding student-athlete did not have property
or liberty interest under due process clause of Texas Constitution to
participate in intercollegiate athletics).

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G. No Further Factual Development Is Required

Berger and Hennig contend that the District Court’s dismissal of

their claims as a matter of law was premature because the issue of

employee status is a “fact-intensive inquiry” and “a factual record has

yet to be developed.” Appellants’ Br. at 8, 28. Yet they ignore that in

Vanskike this Court affirmed a district court’s order on a Rule 12(b)(6)

motion concerning FLSA coverage. 974 F.2d at 807. Other courts have

also found it appropriate to address FLSA issues on a motion to dismiss.

See, e.g., Ash, 799 F.3d at 961-62 (affirming Rule 12(b)(6) dismissal of

FLSA claims due to insufficient factual allegations regarding employer

status of defendants); Freeman v. Key Largo Volunteer Fire & Rescue

Dep’t, 494 Fed. Appx. 940, 944 (11th Cir. 2012) (affirming dismissal of

FLSA claim by volunteer firefighter because economic reality was that

plaintiff was not an employee of either alleged employer); Hallak v. L3

Communications Corp., 490 Fed. Appx. 2 (9th Cir. 2012) (affirming

dismissal of FLSA collective action on statute of limitations defense);

Loving v. Johnson, 455 F.3d 562, 564 (5th Cir. 2006) (affirming

dismissal of FLSA claim by prisoner for failure to state a claim); Brower

v. Metropolitan Dade County, 139 F.3d 817, 819 (11th Cir. 1998)

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(affirming dismissal of FLSA claims by plaintiff juror because economic

reality was that no employment relationship existed); Guevara v. INS,

No. 90-1476, 1992 U.S. App. LEXIS 219 (Fed. Cir. Jan. 6, 1992)

(reported as table case at 954 F.2d 733) (affirming district court’s Rule

12(b)(6) dismissal of alien detainee’s FLSA minimum wage claim);

Doyle, 91 F. Supp. 3d at 482 (granting Rule 12(b)(6) motion to dismiss

FLSA claims because plaintiffs performing community service in

exchange for dismissal of minor criminal charges in state court were not

covered employees under FLSA). The three cases cited by Berger and

Hennig are easily distinguished.

The language quoted from Blanchar v. Standard Insurance Co.,

736 F. 3d 753, 756 (7th Cir. 2013), refers to whether the FLSA

administrative exemption applied to plaintiff, a question that naturally

turns on the actual duties and responsibilities of the plaintiff, an issue

not presented here. In addition, there was no dispute in Blanchar as to

whether an employment relationship existed. Although not disclosed by

Berger and Hennig, Miller v. Advanced Studies, Inc., 635 F. Supp. 1196

(N.D. Ill. 1986), is a Title VII case, not an FLSA case, pre-dates

Vanskike, and addresses the question of whether plaintiff was an

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employee or an independent contractor. The third cited case, Alexander

v. Stratus Building Solutions, No. 4:14 CV 921 CDP, 2014 U.S. Dist.

LEXIS 164194, *1 (E.D. Mo. Nov. 24, 2014), is a Title VII and Age

Discrimination in Employment Act case where the issue was also

whether the plaintiff was an independent contractor rather than an

employee, which is not the issue presented here.

In any event, in Warren v. Stone, 958 F.2d 1419, 1424 (7th Cir.

1992), this Court affirmed a district court’s Rule 12(b)(6) dismissal of

Section 1983 due process claims by two public defender office employees

after determining as a matter of law that they were employed by the

state, not the county, and thus were not subject to the county

disciplinary policy that was the foundation of the property interest for

their due process claims. Notably, in his dissent, Circuit Judge Coffey

urged that the plaintiffs were county employees, but never suggested

that further factual development was necessary. See id. at 1424-28

(Coffey, J., dissenting).

Finally, the safeguard against premature dismissal under Rule

12(b)(6) is incorporated in the relevant standard of review, which

requires, as the District Court did here (Slip Op. at 5) (A. 32; R. 238), to

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“take as true all facts alleged in the complaint” and “draw all

reasonable inferences from those facts” in a plaintiff’s favor. Han, 762

F.3d at 600. Here, Berger and Hennig have utterly failed to plead

sufficient facts that, taken as true and with all reasonable inferences

drawn in their favor, demonstrate their athletic-related activities at

Penn meet the Tennessee Coal definition of “work” that is a prerequisite

to a finding of an employer-employee relationship under the FLSA, or

proffer such facts to the District Court in opposition to Appellees’

Motions to Dismiss. See Section I.C, supra. Accordingly, dismissal

under Rule 12(b)(6) without leave to amend was proper.

II. The District Court Correctly Concluded That The


Amended Complaint Fails To Allege Facts Sufficient
To Raise A Plausible Claim That They Were Jointly
Employed By The NCAA Or Schools That They Did
Not Attend And No Article III Standing Exists With
Respect To Those Parties

Consistent with the Court’s March 15, 2016 direction to confer

with counsel representing other groups of Appellee schools and

coordinate briefing to the extent possible, the Littler/Constangy group

fully joins the arguments set forth by the Jackson Lewis group of

schools in Argument Section II [ECF No. 22].

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Appellees further note that a “joint employer” must still be an

“employer” under the FLSA in order for liability to attach. See, e.g.,

Freeman, 494 Fed. Appx. at 944 (finding that “[w]ithout an employment

relationship, plaintiff’s FLSA claims fail” against both alleged employer

and joint employer). In other words, even under a joint employer theory,

Berger and Hennig must still prove that they performed “work” for each

alleged “joint employer” in order to maintain a claim. See Fuss v. State,

2006 U.S. Dist. LEXIS 55699, at *14-19 (M.D.N.C. Aug. 9, 2006)

(recognizing Tennessee Coal definition of “work” and applying economic

reality test to relationship with alleged joint employers). As with Penn,

Berger and Hennig have failed to allege facts supporting the Tennessee

Coal elements of “work” with respect to the NCAA and Appellee schools

that they did not attend. Further, Berger and Hennig cannot plausibly

allege that the NCAA or any Appellee school that they did not attend

“required” them to participate in track and field practice, training, or

competitions, much less that such Appellees were the “primary

beneficiary” of their athletic activities. Thus, judgment in favor of the

NCAA and Appellee schools that they did not attend should also be

entered.

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III. Appellant Student-Athletes Have Waived Or Forfeited


Any Opportunity For Further Amendment Of Their
Amended Complaint

A. Appellants Failed to Address the Argument that


They Have Not and Cannot Plead Any Facts to
Support that their Athletic Activities Meet The
Elements of “Work”

In responding to the Littler/Constangy Motion to Dismiss, Berger

and Hennig ignored the argument that “the Amended Complaint

contains no factual allegations concerning either the ‘primary benefit’ or

‘required by the employer’ elements of work,” as defined by the Supreme

Court in Tennessee Coal, 321 U.S. at 598.” Littler/Constangy Mot. to

Dismiss at 22 (R. 183); see Littler/Constangy Reply at 6 (R. 215). Berger

and Hennig have still not addressed this argument on appeal or

proffered specific facts concerning the elements of “work” necessary to

avoid dismissal. Their proffered distinctions between club sports and

NCAA Division I sports do not address those “work” elements.

Such omission is particularly glaring where Berger and Hennig

understand that they were permitted to elaborate upon their Amended

Complaint in opposition to the Motions to Dismiss and in fact did so

with respect to their joint employer theory in response to Appellees’

arguments. Appellants’ Br. at 29.

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To the extent that Berger and Hennig finally attempt to proffer

such facts in their Reply Brief or seek leave to amend their Amended

Complaint, this Court should reject such effort. See, e.g., Goodpaster v.

City of Indianapolis, 736 F.3d 1060, 1075 (7th Cir. 2013) (finding

plaintiffs waived claims by failing to respond to arguments in their

reply to motion to dismiss); G&S Holdings LLC v. Continental Cas. Co.,

697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a

party waives an argument by failing to make it before the district

court.”); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)

(finding plaintiffs waived much of their argument on appeal by failing

to address the arguments made by defendants in their motion to

dismiss); see also Bonte v. U.S. Bank, N.A., 624 F.3d 461, 462 (7th Cir.

2010) (affirming district court, which concluded that plaintiff waived

claim by failing to address defendant’s argument in motion to dismiss).

Since without “work” there can be no employer-employee relationship

under the FLSA, this concession is fatal and requires affirmance of the

District Court’s dismissal of their Amended Complaint with prejudice.

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B. Appellants Failed to Seek Leave to Amend in the


District Court

To the extent that an appellant contends that he or she should

have been permitted to re-plead rather than be dismissed with

prejudice on a Rule 12(b)(6) motion, the point is forfeited in this Circuit

if the appellant did not move the district court for leave to amend the

complaint. See Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505,

513 (7th Cir. 2009); see also Rutherford v. Judge & Dolph, Ltd., 707

F.3d 710, 717 (7th Cir. 2013); Pethinaidu Veluchamy v. FDIC, 706 F.3d

810, 820 (7th Cir. 2013).

Here, Berger and Hennig did not seek leave to amend while the

Motions to Dismiss were pending. Further, after the Motions to

Dismiss were granted, Berger and Hennig made no effort in the District

Court to seek leave to amend their Amended Complaint. Instead, they

first sought leave to amend in their opening appellate brief and only “to

add the term ‘joint employment’ to the text of a Second Amended

Complaint.” Appellants’ Br. at 35. Berger and Hennig otherwise have

rested on their Amended Complaint and did so at their peril. See Ash,

799 F.3d at 963-64 (finding district court did not abuse discretion in

denying post-judgment leave to amend following Iqbal/Twombly

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dismissal where plaintiffs “had the opportunity to request leave to

amend at any time before the district court ruled on the motion to

dismiss. Instead, they chose to rest on their original complaint, and did

not seek leave to amend until that complaint was found to be

deficient.”) (citing Rule 15(a)(2)) (footnote omitted).

C. Any Amendment Would Be Futile

The request by Berger and Hennig for amendment is too late, and

in any event, would be futile for two reasons: (1) if Penn is not their

employer (an issue on which they have not requested leave to amend),

then no other Appellee can possibly be their joint employer; and (2) they

cannot plausibly allege that the NCAA or any other Division I member

school “required” them to train or compete while they participated on

the Penn women’s track and field team and thus cannot establish that

they “worked” for those potential joint employers.

Where amendment would be futile, no further opportunity to

amend is required. See, e.g., Charleston, 741 F.3d at 777 (finding no

abuse of discretion in denying motion for leave to amend where plaintiff

only proposed to “rehash his original allegations” and had “offered no

suggestions at all” to district court “about how he would cure the

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complaint’s deficiencies”); Leavell v. Illinois Dep’t of Nat. Res., 600 F.3d

798, 808 (7th Cir. 2010) (holding that the plaintiff’s complaint should be

dismissed with prejudice because she “ha[d] not suggested any way that

she might amend her pleading to cure the deficiency”); Sharp Elecs.

Corp., 578 F.3d at 513 (finding no reversible error where district court

did not permit plaintiff to replead because “any amendment would have

been futile”).

CONCLUSION

For the reasons stated herein and in the District Court’s opinion,

Appellees respectfully request that the Court affirm the District Court’s

entry of judgment in Penn’s favor and dismissal of the claims against

all other Appellees for lack of jurisdiction.

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RULE 32 CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed.

R. App. P. 32(a)(7)(B) because this brief contains 13,799 words,

excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.

32(a)(6) because this brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2010 in 14-point Century Schoolbook.

Dated: June 14, 2016

s/Alan L. McLaughlin
Alan L. McLaughlin

Attorney for Defendants-Appellees


The NCAA and Certain Schools

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PROOF OF SERVICE

I hereby certify that on June 14, 2016, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of

Appeals for the Seventh Circuit by using the CM/ECF system. I certify

that all participants in the case are registered CM/ECF users and that

service will be accomplished by the CM/ECF system.

s/Alan L. McLaughlin
Alan L. McLaughlin

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