The Perfect Play: Why the Fair Labor Standards Act Covers Division I Men’s Basketball and Football Players

An emerging labor and employment issue during the last decade—and one which has yet to be conclusively decided—is whether college athletes are employees of the colleges and universities for which they compete. The most employed attack by college athletes has been to attempt to gain coverage under the National Labor Relations Act (NLRA), which would allow the athletes to unionize and collectively bargain with the colleges and universities. However, this method has been largely unsuccessful, and the National Labor Relations Board (NLRB) decision denying coverage does not provide any hope that future attempts under the NLRA will be any more successful. However, there is another method which should prove more successful: gaining coverage under the the Fair Labor Standards Act (FLSA). Passed by Franklin Delano Roosevelt in 1938, the FLSA provides two main protections to covered workers: first, a mandated minimum wage per hour worked; and second, required overtime if a covered worker’s hours exceed a certain number in a given week. A worker is deemed covered by the FLSA if there is an employment relationship between the worker and the employer. While this is a broad test, there are certain categories of workers that are not covered by the FLSA’s protections. The main exceptions to this broad test are independent contractors and certain administrative and managerial workers. It is an open question whether college athletes are employees under the FLSA. The first case to reach a federal court regarding coverage for college athletes under the FLSA was Berger v. National Collegiate Athletic Association in 2016. In Berger, three women’s track and field athletes sued the University of Pennsylvania to obtain minimum wage and overtime they felt they were entitled to under the FLSA. The athletes attempted to argue that they were covered under the FLSA’s intern doctrine. The court ruled against the athletes, relying on the Department of Labor’s (DOL) inaction on the issue, certain DOL guidelines, and the spirit of amateurism in college sports. The athletes appealed to the Seventh Circuit but were unsuccessful. The athletes in the Berger case made the right arguments but were the wrong plaintiffs to make them. This Comment begins by analyzing the internship doctrine under the FLSA, and discussing the variety of tests different circuits have created to determine which workers are covered under the doctrine. It argues that the test set forth by the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc. is the test that should be adopted nationwide. This Comment then argues that, under this test, a court should find that Division I men’s basketball and football players are covered by the FLSA