Student-Athletes Denied Wages for Athletic Training

–by Ryan White

Source: Berger v. National Collegiate Athletic Association, No. 16-1558, 2016 WL 7051905 (7th Cir. Dec. 5, 2016).

Abstract:  Two former members of the University of Pennsylvania Women’s Track and Field team sued the school and the NCAA claiming they were entitled to minimum wage for their athletic training. The Seventh Circuit disagreed, but the court left open the possibility for a class of future plaintiffs who may succeed with that argument.


Facts and Procedure

Gillian Berger and Taylor Hennig both were part of the University of Pennsylvania’s Track and Field team, a Division I school governed by the National Collegiate Athletic Association. Berger and Hennig’s suit against Penn, the NCAA, and 120 other NCAA institutions was predicated on the argument that they, as student athletes, were “employees” and entitled to minimum wage under the Fair Labor Standards Act (29 U.S.C. § 201). The District Court held that the plaintiffs did not have standing to sue any defendants other than Penn, and that the former student athletes failed to state a claim because student-athletes are not employees under the FLSA.

7th Circuit Decision

The 7th Circuit affirmed both of the lower court’s holdings. The opinion quickly dispensed with the first issue of standing, explaining that under the FLSA, an alleged employee’s injuries are only redressable by the employer.  Any connections between the former student-athletes and the NCAA or its other member institutions were “far too tenuous” for the plaintiff-appellants to have standing.

The Court spent a little more time analyzing the alleged employer-employee relationship between Berger and Hennig and Penn under the FLSA. Circular definitions in the statute itself led the Court to look other places to determine whether student-athletes were entitled to minimum wage.

The burden for establishing an employer-employee relationship fell on the plaintiffs, and the Court emphasized that in ultimately making a decision, it must look to the totality of the circumstances. This examination includes reviewing the “economic reality” between the student-athletes and the university. The Court had developed a seven-factor test for analyzing whether migrant laborers were protected by the FLSA, and the Second Circuit had a similar seven-factor analysis for evaluating interns under the FLSA.  The District Court declined to utilize those tests because they did not accurately capture the facts at hand.

The Court was particularly concerned with the revered nature of amateurism in collegiate sports. The amateur status of student-athletes is at the core of the economic reality of the situation. The Court stressed the importance of the eligibility rules developed by the NCAA. In discussing the amateur status of student-athletes, the court cited to O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015), one of several recent cases where student-athletes have challenged the NCAA seeking better compensation.

The Seventh Circuit considered several other courts’ decisions that found there to be no employer-employee relationship.   One particular scenario in which this has consistently been the case is in regards to workers’ compensation.  Multiple courts have consistently refused to say that student-athletes are employees in the workers compensation context and thus athletes are not entitled to compensation if injured while playing sports for their university.

The Court also looked to the Department of Labor, whose Field Operations Handbook also states that student-athletes are not employees under the FLSA.  One section of that handbook stressed that interscholastic and extracurricular activities, like athletics, are primarily for the benefit of the student. When the benefit is primarily for the student, then the activity cannot be labeled “work.” While not specifically controlling, the Court said the Handbook is persuasive and has been used as guidance repeatedly.

The plaintiff-appellants’ argued that an employer-employee relationship is a particularly fact intensive investigation. The Seventh Circuit disagreed as a matter of law.  The voluntary nature of intercollegiate sports is crucial. The Court emphasized that there is a fundamental difference between “play[ing]” sports and “work.” The Seventh Circuit affirmed the District Court’s grant of defendant-appellants’ motion to dismiss.

Justice Hamilton’s Concurrence

While the majority opinion does not offer any hope for the growing movement seeking compensation for student-athletes, Justice Hamilton’s concurrence does.   Justice Hamilton finds specific facts in the case at hand that may distinguish it from future legislation.  First, Penn does not offer scholarships.  Second, Track and Field is not a revenue sport for the University.  Given those two factors, the amateur status of the student-athletes as the NCAA projects is in its purest form.

Justice Hamilton points out, though, that a different conclusion could be reached for a student-athlete on scholarship playing a sport like football or basketball that is a major revenue stream for the university. Justice Hamilton concurred because the broad theory pursued by the plaintiff-appellants was just that—too broad.  The amateur status of a D1 basketball or football player in a billion dollar industry presents a much different scenario. The economic reality of someone in that scenario, Justice Hamilton suggests, may be of a fundamentally different nature. There may be a light at the end of the tunnel for those college athletes seeking compensation.

Survey: 2015 Labor & Employment Law

Survey of New York Labor and Employment Law for 2014–2015.

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Bruce S. Levine, is of counsel to and a former member of the law firm of Cohen, Weiss and Simon, LLP, which represents unions, individual employees, and employee benefit trust funds. Mr. Levine is also General Counsel to the Teamsters Local 282 Benefit Trust Funds, in Lake Success, New York. He is a graduate of the New York State School of Industrial Labor Relations at Cornell University, and a cum laude graduate of the University of Wisconsin Law School. Mr. Levine would like to acknowledge the research and editing help from his legal assistant, Ross Pollack, who is a third-year law student at St. John’s University School of Law.

The NFL’s New Application of the Rooney Rule

— by Ben Cranston


If the statistical evidence of success of the NFL’s “Rooney Rule” is any indicator of future increased diversity, we will be seeing significantly more female executives working for NFL franchises in the coming years. The NFL has recently decided to apply the Rooney Rule to open executive-staff positions, requiring teams to interview at least one female candidate for the position. While this new implementation of the rule will likely draw criticism from various sources, challenges to the rule will likely fail in an increasingly open and diverse sports industry.

Articles used:

Brian W. Collins, Note, Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, 82 N.Y.U. L. Rev. 870 (2007).

Jane McManus, Rodger Goodell: Women Will Interview for Open Executive Jobs, ESPN (Feb. 4, 2016),



On Thursday, February 4, the NFL announced that they will be applying the “Rooney Rule” to female candidates for open executive-staff positions. The NFL’s Rooney Rule was first applied in 2002 to require NFL teams to interview at least one minority candidate for any open coaching position in response to the small percentage of minority head coaches in the NFL. In the wake of the Arizona Cardinals’ hiring of Jen Welter as an assistant coach, making her the first woman to hold a coaching position in the NFL, and the Bills’ hiring of Kathryn Smith as the first full-time female coach, the NFL intends to further the goal of making coaching and executive staffs not only racially diverse, but diverse across gender lines with the new application of the Rooney Rule.

Many authors have explored the nature of the Rooney Rule and why its implementation has been a great success in the NFL, even though it has faced many forms of criticism in its early stages. Brian Collins of NYU, in his article Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, argues that the Rooney rule “travers[es] the line between ‘soft’ and ‘hard’ variants of affirmative action.” He argues that the Rooney Rule is an effective policy to avoid the unconscious bias involved in the hiring practices of the NFL. His article explores the legality of the Rooney Rule and how it may be susceptible to attack on the grounds of reverse racism. The article has particular relevance now, as the Rooney Rule could possibly be attacked again in the wake of its new application to female executive candidates.

In the wake of the Griggs v. Duke Power Company Supreme Court decision, many private employers began implementing affirmative action hiring programs as to avoid liability under Title VII. However, many professional sports leagues implemented “soft” affirmative action techniques, like recruiting and outreach practices, rather than “hard” affirmative action techniques, like quotas and numerical requirements. While leagues like the NBA have been significantly more successful in creating diverse coaching staffs throughout the league by using “soft” techniques, the NFL trailed other professional sports leagues before the implementation of the “hard” Rooney Rule.

While Collins does argue that the Rooney Rule is susceptible to attack under title VII in a reverse discrimination claim by a Caucasian coach who is denied a job, he argues that with some slight changes to the rule, it would be very difficult for that challenger to succeed. The worries about the rule’s applicability and ability to survive a challenge are now even more topical with the application of the Rooney Rule to female candidates. The NFL should be, and is likely, aware of criticism and a possible challenge to the rule now that it has a broader scope. However, the NFL can easily point to the statistics that show a significant increase in minority coaches since 2002 as an indication of the success of the Rooney Rule.

The new application of the Rooney Rule in the NFL will likely draw criticism from many critics of affirmative action practices. However, if the post-Rooney statistical data involving racial diversity in the NFL coaching staffs is any indicator of future gender diversity in executive positions, it will be hard for critics to argue that this rule does not work and does not create more diversity. While the NFL should be prepared for potential attacks on the rule, it is unlikely that such an attack will be successful, nor will an attack find much support in an increasingly open and diverse industry.


Survey: 2014 Labor & Employment Law

Survey of New York Labor & Employment law for 2013–2014.

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Tyler Hendry, associate at Bond, Schoeneck & King, PLLC; J.D., magna cum laude, 2010, University at Buffalo Law School; B.A., summa cum laude, 2007, Le Moyne College. Allison Zullo Gottlieb, associate at Bond, Schoeneck & King, PLLC; J.D., summa cum laude, 2011, Albany Law School; B.A., summa cum laude, 2008, St. John Fisher College. The authors would like to thank Alyssa N. Campbell, Scott F. Regan, and Jennifer B. Scheu for their assistance in preparing this article.

Farruggia v. Town of Penfield

This appeal addresses an order by the New York Supreme Court denying summary judgment, granting summary judgment, denying partial summary judgment, and granting a motion for leave to amend. The Plaintiff, Gaetano Farruggia, was a construction worker and backhoe operator. The Defendant, Town of Penfield, hired the Plaintiff’s employer to complete a project (Project) on the Co-Defendant’s, Kenneth and Suzanne Hershey, property. The Project involved performing paving work on the sidewalk and driveway. While the Project was located on the co-defendant’s property, it was also located within the Defendant’s right-of-way through Co-Defendant’s property. It appears that an area of land (Landing Area) outside of Defendant’s right-of-way, but inside and wholly located on the Co-Defendant’s property was being used to park construction vehicles and equipment. At the end of a workday the Plaintiff parked a backhoe in the Landing Area which rolled into a ravine, injuring him. Plaintiff commenced an action against the Defendant and Co-Defendant under Labor Law and common-law negligence.

The Supreme Court denied Defendant’s motion for summary judgment in dismissing the Labor Law cause of action and granted Co-Defendant’s motion summary judgment. It also denied part of Plaintiff’s motion for partial summary judgment granted part of Plaintiff’s motion for leave to amend their bill of particulars. Defendant appealed and Plaintiff cross-appealed.

The Appellate Division agreed with Defendant that the lower court erred in denying Defendant’s motion for summary judgment in dismissing the Labor Law causes of action because the Defendant was not considered an “owner” for purposes of the statutes. The accident occurred well outside the Defendant’s right-of-way, and the Defendant had no interest or legal control over the Landing Area. Further, the Landing Area was completely on the Co-Defendant’s private property, the Co-Defendant had given Plaintiff permission to park the backhoe there and directed Plaintiff on exactly where to park. The Defendant had no power to do the same and there were other options available for Plaintiff to park. Further, the Appellate Division determined Plaintiff’s accident did not have “an elevation-related risk,” as protected against in Labor Law § 240(1). The Appellate Division also agreed with Defendant in denying the common-law negligence causes of action. The Appellate Division found that since Defendant established it did not occupy, own, or have control over the area of the accident (the Landing Area), and did not employ this area for a special use, it did not owe Plaintiff a duty of care.

The Appellate Division therefore modified the Supreme Court’s order by granting the Defendant’s summary judgment and dismissing the cross claim against it. The court also modified the lower courts order by totally denying Plaintiff’s motion for leave to amend, since there is no longer a basis against the town to do so.

The Appellate Division also agreed with Plaintiff in saying the lower court erred in dismissing the Labor Law and common-law negligence causes of action against the Co-Defendant. The Co-Defendants owned and controlled the accident area and did not establish that they did not have actual or constructive notice of the dangerous condition. The court modified the lower court’s order by denying Co-Defendant’s motion for summary judgment.

989 N.Y.S.2d 715 (4th Dep’t. 2014)

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Harwood v. Addison

This appeal concerns the termination of employment of a public employee. The Petitioner, Brenda Harwood, served as a senior account clerk typist in the City of Watertown’s Parks and Recreation Department. After a twenty-nine year career with the Department, the City brought incompetence and misconduct charges against Harwood, pursuant to Civil Service Law § 75. The Hearing Officer found that two of the charges could be sustained by the evidence, and found Petitioner guilty of one count of “fail[ing] to deposit cash and checks in a timely manner” and one count of “willfully misleading the City’s retained accountant.” The City also found that Petitioner was guilty of a second count of incompetence because she had “fail[ed] to bill for services in a timely manner.” Petitioner was found not guilty of the additional charges of incompetence and misconduct. As a result of the Hearing Officer’s findings, the City “terminated [Harwood’s] employment” with the Department. Petitioner filed suit in the Supreme Court pursuant to Civil Practice Law and Rules Article 78, and Supreme Court Justice Greenwood transferred this matter to the Appellate Division Fourth Department.

The Appellate Division reviewed each of the charges in turn, beginning with the Hearing Officer’s finding that Petitioner was guilty of “willfully misleading the City’s retained accountant.” The City alleged that Petitioner had been dishonest regarding a number of uncashed checks. However, the court found that evidence raised by Petitioner–namely, that she had previously stated that she had not deposited a check for the City–directly contradicted the City’s position that she lied about making the deposit. Therefore, the court found this count was “not supported by substantial evidence.”

The court next analyzed the remaining incompetence charges together, noting a number of mitigating factors in favor of a more lenient sentence for Petitioner. The court noted “that there were several factors beyond [Harwood’s] control that contributed in the delays” in making the deposits. Petitioner’s service to the City in her official capacity, although not named in her official job description, included a number of time-consuming clerical, scheduling, and other assorted responsibilities that “took in excess of 50% of her time.” Petitioner also suffered from an illness that forced her to intermittently miss work over a period of six months, and the court noted that because no one else in the office took over her assignments during that period, “several of [her] completed invoices were inadvertently deleted[.]” The court also relied on Petitioner’s “long service to the City and her previously unblemished work record[,]” the testimony demonstrating that “she was a hard worker and did her best to complete all of her assigned duties[,]” and that she often stayed late without extra pay to justify mitigating her sentence.

In assigning a proper sanction for Petitioner, the court explained that the initial punishment of termination was vastly disproportionate to the nature of the original charged offenses, noting the penalty was “so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one’s sense of fairness.” (citing Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1. of Towns of Scarsdale and Mamaroneck, Westchester Cnty., 313 N.E.2d 321, 326 (N.Y.1974)). Accordingly, the court found that a sentence of a two-month suspension without pay, rather than termination, was appropriate for the two remaining incompetence charges.

988 N.Y.S.2d 814 (4th Dep’t. 2014)

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Foots v. Consol. Bldg. Contrs., Inc.

This is an appeal and cross-appeal from three summary judgment rulings in a personal injury action. The plaintiff, James Foots, was an employee of the lessee, Sodexho, a commercial laundry business. As part of the lease, Grinder was responsible for structural improvements to the dilapidated building, and Sodexho was responsible for installing the industrial laundry equipment. Grinder hired RCM to manage the project, and subcontracted with Consolidated to construct repositories or linens. These repositories were four large pits, for which Consolidated also constructed wooden frames with plywood covers, in order for employees to safely push large laundry carts across the floor.

The plaintiff was injured in the course of his employment when he drove a forklift over a plywood-covered pit and the cover collapsed. He then sued 60 Grinder Street, LLC (“Grinder”); Rollins Construction Management, Inc. (“RCM”), Grinder’s agent; and Consolidated Building Contractors, Inc. (“Consolidated”), the subcontractor that constructed the pit and the plywood cover. In addition to a common-law negligence claim, the plaintiff sought recovery under Labor Law § 240(1), which required that the plaintiff be injured while erecting, demolishing, repairing, or altering the structure. He also sought recovery under Labor Law § 241(6), which required that plaintiff be injured while installing the industrial laundry equipment as part of the renovation. Lastly, he sought recovery under Labor Law § 200, which is not limited to construction work.

Defendant Grinder moved for summary judgment seeking to dismiss the plaintiff’s common-law negligence cause of action and his claims under Labor Law §§ 200, 240(1), and 241(6) claims. Grinder also moved for summary judgment on its cross-claims against Consolidated seeking contractual and common-law indemnification. The plaintiff moved for partial summary judgment on the issue of liability against Grinder for his Labor Law § 240(1) claim. Both Grinder’s motion and the plaintiff’s were denied, and both appealed. Consolidated moved for summary judgment and sought to dismiss plaintiff’s Labor Law §§ 200, 240(1), and 241(6) claims with respect to Consolidated. The trial court granted this motion, and plaintiff appealed.

The court held that none of the trial court’s rulings were error. Because Consolidated presented evidence that it had completed its contracted work and was not present on the work site at the time of the accident, and plaintiff failed to raise an issue of fact in this regard, Consolidated could not be held liable under any of plaintiff’s causes of action. Grinder failed to establish that Consolidated was negligent or that it exercised control over the injury-producing work, and therefore Consolidated was not required to indemnify Grinder.

The court further held that there were various issues of fact which made the denial of the other motions proper. The common-law negligence claim survived because there was an issue of fact raised as to whether Grinder had actual or constructive notice of the dangerous condition. For this same reason, and also because Grinder failed to establish that they did not control the work site, the Labor Law § 200 claim survived. The trial court properly denied both Grinder’s and plaintiff’s motions on the Labor Law § 240(1) claim because there were issues of fact whether the plaintiff was merely moving a “towel folder,” an activity not covered by this section, or whether he was making an alteration to the structure, which would have been covered. The same issue of fact precluded summary judgment on the Labor Law § 241(6) claim.

The court rejected any additional contentions of the parties and affirmed all the rulings of the trial court.

989 N.Y.S.2d 723 (4th Dep’t. 2014)

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Spoleta Construction, LLC v. Aspen Ins. UK Ltd.

This case on appeal concerns the notice provision of an insurance policy covering a third party contracted employee. The plaintiff in this case, Spoleta Construction, LLC, contracted defendant Hub-Langie Paving, Inc., to complete paving work on a construction job. Plaintiff was named as an additional insured of defendant’s policy. Defendant’s employee Shane VanDerwall (“VanDerwall”) was injured while working on the contracted job for plaintiff in October of 2008. VanDerwall commenced a negligence action against plaintiff and others following the incident. Plaintiff did not receive notice of the accident until December 2009, in a letter from VanDerwall’s attorney. In January 2010, plaintiff’s liability carrier sent a letter to defendant notifying it of VanDerwall’s claim, requesting that defendant put its own insurance carrier on notice. Plaintiff’s counsel then demanded that defendant defend and indemnify it in the underlying action. Defendant disclaimed coverage based on untimely notice.

Thereafter, plaintiff commenced a declaratory judgment action seeking a declaration that defendant provide insurance coverage to plaintiff in VanDerwall’s claim. Defendant moved to dismiss the complaint and the Supreme Court, Monroe County granted the motion. The Supreme Court Appellate Division, Fourth Department reversed the judgment and reinstated the complaint against defendant.

The court looked to the language of the insurance policy and noted that unambiguous provisions must be given their plain and ordinary meaning. Furthermore, in the face of ambiguity, the court noted that it must be construed in favor of the insured and against the insurer. In terms of notice, the court stated that notice requirements will be construed in favor of the insured with substantial compliance being sufficient.

The notice provision of defendant’s insurance policy detailed that the insurer has to be notified “as soon as practicable.” The court noted notice should include: how, when and where the accident happened; names and addresses of the injured and witnesses; and the nature and location of injury or damage that occurred. The court held that the December 2009 letter was a notice of an occurrence that could give rise to a claim, but not a claim under the policy. The court rationalized that the December 2009 letter was not a claim because it did not make any demand for payment nor advise that legal action was forthcoming. The court further held that the January 2010 letter constituted notice as soon as practicable to defendant, and that plaintiff was not required to provide notice so long as notice was given. Therefore, the court determined that the Supreme Court erred in dismissing plaintiff’s claim as a matter of law.

The dissent objected on the grounds that plaintiff failed to provide timely notice of an occurrence to defendant. The dissent sought to modify the judgment by denying part of defendant’s motion seeking to dismiss the declaratory judgment cause, reinstating that cause of action.  Further, the dissent would grant judgment to defendant by declaring that defendant had no duty to plaintiff. The dissent disagreed that plaintiff’s January 2010 letter to defendant constituted notice of an occurrence under the terms of the policy, reasoning the letter did not indicate that plaintiff was seeking coverage directly from defendant as an additional insured on the policy.

991 N.Y.S.2d 183 (N.Y. App. Div. 2014)

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Bish v. Odell Farms P’ship

This appeal addresses the interpretation of NY Labor Law § 240(1) and NY Labor Law § 241(6). The plaintiff, Robert Bish, was a cement truck driver who was injured following a slip and fall off of an affixed ladder to the cement truck he was operating while on the defendant, Odell Farms’ property. Plaintiff commenced a personal injury action against defendant in the Supreme Court of Chautauqua County. Defendant moved for summary judgment, which was granted in part, but denied with respect to NY Labor Law § 240(1) and NY Labor Law § 241(6). Defendant appealed the denial of its summary judgment motion, and this court reversed the lower court’s decision, concluding that the summary judgment motion should have been granted in its entirety.

Plaintiff’s employer contracted with defendant to deliver cement to its property for purposes of constructing a bunk silo. After the cement truck was unloaded, plaintiff drove the truck to a nearby ditch on Defendant’s property in order to wash out the truck, which is a routine procedure. While washing the truck, Plaintiff was standing on a ladder affixed to the truck, and stepped on a wet rung of the ladder, falling off and injuring himself.

The language of NY Labor Law § 240(1) is to be construed liberally in order to protect workers (Wicks v. Trigen-Syracuse Energy Corp., 877 N.Y.S.2d. 791 (4th Dep’t. 2009), but it “must not be strained to accomplish what the Legislature did not intend” (Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y. 3d 280, 292 (2003)). Here, the court the court held that plaintiff was not engaged in a type of activity that the legislature intended to impose liability for under NY Labor Law § 240(1). The routine washing of a cement truck is not an “erection, demolition, repairing, altering, painting, cleaning, or pointing” of a “building or structure” within the meaning of NY Labor Law § 240(1). Furthermore, the court rejected the argument that because Plaintiff operated the machinery of the cement truck to assist the pouring of the cement as part of construction of the bunk silo, that he was engaged in the “construction” of a “structure or building” within the meaning of NY Labor Law § 240(1).

With regard to NY Labor Law § 241(6), the court held that it was inapplicable because plaintiff was not engaged in “construction work” within the meaning of the statute when he fell off the ladder. Plaintiff was merely washing his truck as a routine procedure.  For those reasons the court held that Defendant’s summary judgment motion should have been granted in its entirety.

989 N.Y.S.2d. 719 (4th Dep’t. 2014)

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Survey: 2013 Labor & Employment Law

Survey of New York Labor & Employment Law for 2012–2013.

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Tyler T. Hendry: Associate at Bond, Schoeneck & King, PLLC; J.D., magna cum laude, 2010, University at Buffalo Law School; B.A., summa cum laude, 2007, Le Moyne College.

Anas Saleh: Associate at Bond, Schoeneck & King, PLLC; J.D., magna cum laude, 2011, Syracuse University College of Law; B.A., summa cum laude, 2008, State University of New York at Buffalo.

The authors would like to thank Michelle R. Billington, Esq. and Kevin R. MacLeod, Esq. for their assistance in preparing this article.