In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-1558

GILLIAN BERGER, et al.,

Plaintiffs-Appellants,

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 14-cv-1710 — William T. Lawrence, Judge.

____________________

ARGUED SEPTEMBER 28, 2016 — DECIDED DECEMBER 5, 2016

____________________

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. Former student athletes at the University of Pennsylvania (“Penn”) sued Penn, the National 

Collegiate Athletic Association (“NCAA”), and more than 

120 other NCAA Division I universities and colleges alleging 

that student athletes are employees who are entitled to a 

minimum wage under the Fair Labor Standards Act 

(“FLSA”). The district court disagreed. We agree with the 
2 No. 16-1558

district court and hold that student athletes are not employees and are not covered by the FLSA.

I. BACKGROUND

Gillian Berger and Taylor Hennig (“Appellants”) are former students at Penn who participated on Penn’s women’s 

track and field team. Like many collegiate athletic teams 

across the country, Penn’s women’s track and field team is 

regulated by the NCAA. The NCAA is a member-driven, unincorporated association of 1121 colleges and universities. It

is divided into three divisions—Divisions I, II, and III—

based roughly on the size of the schools and their athletic 

programs. Penn’s women’s track and field team competes in 

Division I, which includes the largest colleges and universities in the country. 

Appellants sued Penn, the NCAA, and more than 120 

other NCAA Division I member schools (“Appellees”), alleging that student athletes are “employees” within the meaning of the FLSA, 29 U.S.C. § 201. Accordingly, Appellants 

contend that the NCAA and its member schools violated the 

FLSA by not paying their athletes a minimum wage. Appellees moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The district court granted Appellees’ motions, holding 

that (1) Appellants lacked standing to sue any of the Appellees other than Penn, and (2) Appellants failed to state a 

claim against Penn because student athletes are not employees under the FLSA. This appeal followed.

II. ANALYSIS

The district court first dismissed Appellants’ suit against

all of the Appellees except Penn for lack of standing. We re-
No. 16-1558 3

view de novo a district court’s dismissal of a complaint for 

lack of standing. Lewert v. P.F. Chang’s China Bistro, Inc., 819

F.3d 963, 966 (7th Cir. 2016).

In every case, the plaintiff has the burden of establishing 

the three elements of standing: that “(1) [he or she] has suffered an ‘injury in fact’ that is (a) concrete and particularized 

and (b) actual or imminent, not conjectural or hypothetical; 

(2) the injury is fairly traceable to the challenged action of 

the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 

Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). To meet this burden and to 

survive a challenge to standing under Rule 12(b)(1), a plaintiff must plead sufficient factual allegations, taken as true,

that “plausibly suggest” each of these elements. Silha v. ACT, 

Inc., 807 F.3d 169, 174 (7th Cir. 2015). 

Under the FLSA, alleged employees’ “injuries are only 

traceable to, and redressable by, those who employed them.” 

Roman v. Guapos III, Inc., 970 F. Supp. 2d 407, 412 (D. Md. 

2013). Appellants attended Penn. Their connection to the 

other schools and the NCAA is far too tenuous to be considered an employment relationship: “the only fair reading of 

the Amended Complaint is that [Appellants] are alleging 

that they are employees of only Penn, not of the other Defendants.” (R. 238 at 5.) Thus, Appellants have not plausibly

alleged any injury traceable to, or redressable by, any defendant other than Penn. So they lack standing to sue those 

other defendants. 

We now turn to the merits with regard to Penn, over 

which no one disputes that we have jurisdiction. The district 
4 No. 16-1558

court dismissed Appellants’ suit against Penn for failure to 

state a claim. We review de novo a district court’s dismissal of 

a complaint for failure to state a claim. Jackson v. Blitt & 

Gaines, P.C., 833 F.3d 860, 862 (7th Cir. 2016). In evaluating 

the sufficiency of the complaint, “we construe it in the light 

most favorable to the nonmoving party, accept well-pleaded 

facts as true, and draw all inferences in [the nonmoving party’s] favor.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 

2016) (quoting Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 

1146 (7th Cir. 2010)). Although a party need not plead “detailed factual allegations” to survive a motion to dismiss, 

mere “labels and conclusions” or “a formulaic recitation of 

the elements of a cause of action will not do.” Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, “To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that 

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

(2009) (quoting Twombly, 550 U.S. at 570). 

The FLSA requires “[e]very employer” to pay “his employees” a minimum wage of $7.25 per hour. 29 U.S.C. 

§ 206(a)(1)(c). Section 203(e)(1) defines “employee” in an unhelpful and circular fashion as “any individual employed by 

an employer.” 29 U.S.C. § 203(e)(1). Section 203(g) broadly 

defines “employ” as “to suffer or permit to work.” 29 U.S.C. 

§ 203(g). Thus, to qualify as an employee for purposes of the 

FLSA, one must perform “work” for an “employer.”1

“Work” is not defined by the Act.

 1 Section 203(d) of the FLSA defines “employer” as “any person acting 

directly or indirectly in the interest of an employer in relation to an employee ... .” 29 U.S.C. § 203(d).
No. 16-1558 5

Under the FLSA, the plaintiff bears the burden of establishing that he or she performed work for an employer and 

is therefore entitled to compensation. Melton v. Tippecanoe 

Cty., 838 F.3d 814, 818 (7th Cir. 2016). Here, to survive the 

motions to dismiss, Appellants had to allege facts, which

taken as true, establish that they were employees and performed work for Penn.

Although “[t]he Supreme Court has instructed the courts 

to construe the terms ‘employee’ and ‘employer’ expansively 

under the FLSA,” Vanskike v. Peters, 974 F.2d 806, 807 (7th 

Cir. 1992) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 

318, 326 (1992)), the Court has also held that the definition of 

“employee” “does have its limits.” Tony & Susan Alamo 

Found. v. Sec’y of Labor, 471 U.S. 290, 295 (1985). “Because status as an ‘employee’ for purposes of the FLSA depends on 

the totality of circumstances rather than on any technical label, courts must examine the ‘economic reality’ of the working relationship” between the alleged employee and the alleged employer to decide whether Congress intended the 

FLSA to apply to that particular relationship. Vanskike, 974 

F.2d at 808.

To guide this inquiry, courts have developed a variety of 

multifactor tests. For example, we have applied a sevenfactor test to determine whether migrant laborers are employees for purposes of the FLSA. Sec'y of Labor v. Lauritzen, 

835 F.2d 1529, 1535–538 (7th Cir. 1987). Similarly, the Second 

Circuit created a “non-exhaustive set of [seven] considerations” to help determine when an intern is an employee under the FLSA. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 

528, 536–37 (2d Cir. 2015). Appellants liken student athletes

to interns and contend that we should use the Second Cir-
6 No. 16-1558

cuit’s test set forth in Glatt to determine whether student athletes are employees under the FLSA. We disagree.

It is true, as Appellants note, that the district court cited

the Second Circuit’s test favorably. But the district court also 

declined to follow that test here. Instead, the court concluded correctly that our approach “to determining who is an 

employee under the FLSA is ... a flexible one.” (R. 238 at 15.) 

The court then discussed our decision in Vanskike, in which

we rejected the strict application of a similar multifactor test

in favor of a more flexible standard. 974 F.2d at 809.2

We have declined to apply multifactor tests in the employment setting when they “fail to capture the true nature 

of the relationship” between the alleged employee and the 

alleged employer. Id. In Vanskike, we considered whether an 

inmate at a state prison was an employee under the FLSA. 

Id. at 806. Like Appellants here, the inmate in Vanskike urged 

us to apply a multifactor test to determine whether an employment relationship existed. We rejected the application of 

that test because it was “not the most helpful guide in the 

situation presented.” Id. at 809. Rather than follow a specific 

test, we examined the economic reality of the alleged employment relationship and concluded that the prisoner was 

not an employee. Id. at 809–10.3

 2 The multifactor test rejected in Vanskike comes from Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983).

3 Similarly, in Callahan v. City of Chicago, we rejected the application of 

Lauritzen’s multifactor test when the alleged employee’s suit didn’t “require a choice between employment and independent-contractor status.” 

813 F.3d 658, 662 (7th Cir. 2016). Other courts have likewise rejected the 

stringent application of multifactor tests in certain settings. See e.g.,

(continued...)
No. 16-1558 7

The district court followed the reasoning of Vanskike and 

held that the “factors used in the trainee and private-sector 

intern context fail to capture the nature of the relationship 

between the Plaintiffs, as student athletes, and Penn.” (R. 238 

at 15). We agree with the district court and decline to apply 

the test set forth in Glatt here. 

As the Supreme Court has noted, there exists “a revered 

tradition of amateurism in college sports.” Nat’l Collegiate 

Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 

120 (1984). That long-standing tradition defines the economic reality of the relationship between student athletes and 

their schools. To maintain this tradition of amateurism, the 

NCAA and its member universities and colleges have created an elaborate system of eligibility rules. See O’Bannon v. 

Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1054–55 (9th Cir. 

2015) (outlining the development of these rules). We have 

held that these rules “define what it means to be an amateur 

or a student-athlete, and are therefore essential to the very 

existence of” collegiate athletics. Agnew v. Nat’l Collegiate 

Athletic Ass’n, 683 F.3d 328, 343 (7th Cir. 2012). The multifactor test proposed by Appellants here simply does not take

into account this tradition of amateurism or the reality of the 

student-athlete experience. In short, it “fail[s] to capture the 

true nature of the relationship” between student athletes and 

 

(...continued)

Danneskjold v. Hausrath, 82 F.3d 37 (2d Cir. 1996); Doyle v. City of New 

York, 91 F. Supp. 3d 480, 486 (S.D.N.Y. 2015) (“[I]n certain contexts, application of a multifactor test can cause a court to miss the forest for the 

trees.”).
8 No. 16-1558

their schools and is not a “helpful guide.” Vanskike, 974 F.2d 

at 809. 

A majority of courts have concluded—albeit in different 

contexts—that student athletes are not employees. See generally Adam Epstein and Paul M. Anderson, The Relationship 

Between a Collegiate Student-Athlete and the University: An Historical and Legal Perspective, 26 Marq. Sports L. Rev. 287, 297 

(2016) (collecting cases and concluding that “the courts have 

been consistent finding that student athletes are not recognized as employees under any legal standard, whether 

bringing claims under workers’ compensation laws, the 

NLRA or FLSA”). For example, most courts have held that 

student athletes are not employees in the workers’ compensation context and are thus not entitled to compensation 

from their schools for injuries they suffer while playing their 

respective sports. See e.g., Rensing v. Ind. State Univ. Bd. of 

Trustees, 444 N.E.2d 1170 (Ind. 1983); State Comp. Ins. Fund v. 

Indus. Comm’n, 314 P.2d 288 (Colo. 1957); Waldrep v. Tex.

Emp’rs Ins. Ass’n, 21 S.W.3d 692 (Tex. App. 2000); Coleman v. 

W. Mich. Univ., 336 N.W.2d 224 (Mich. Ct. App. 1983).

Although two courts reached the opposite conclusion

over fifty years ago, they did so, at least in part, because the 

student athletes in those cases were also separately employed by their universities. See Univ. of Denver v. Nemeth, 

257 P.2d 423 (Colo. 1953); Van Horn v. Indus. Accident 

Comm’n, 33 Cal. Rptr. 169 (Cal. Dist. Ct. App. 1963). Moreover, in 1965, the California legislature, in apparent disagreement with the California District Court of Appeal in Van 

Horn, amended the state’s labor code to explicitly exclude 

student-athletic participants as employees for purposes of 

worker’s compensation. See Shephard v. Loyola Marymount 
No. 16-1558 9

Univ., 125 Cal. Rptr. 2d 829, 832–34 (Cal. Ct. App. 2002) (discussing the legislature’s amendment).

The Department of Labor, through its Field Operations 

Handbook (“FOH”), has also indicated that student athletes 

are not employees under the FLSA. The FOH “is an operations manual that provides Wage and Hour Division ... investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general 

administrative guidance.” Field Operations Handbook (FOH), 

United States Dep’t of Labor, https://www.dol.gov/Whd/FO 

H/index.htm. Appellants argue that the FOH “cannot form 

the basis for any dismissal.” (Appellants’ Reply Br. at 11.) We 

agree with Appellants that the provisions in this handbook 

are not dispositive, but they certainly are persuasive. In fact, 

we have cited this handbook as persuasive authority several 

times. See 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).

Chapter ten of the FOH “contains interpretations regarding the employment relationship required for the [FLSA] to 

apply.” Field Operations Handbook (FOH), § 10a00. Section 

10b24 specifically addresses the employment status of university or college students. This section is broken into two 

subsections—subsection (a) and subsection (b).

Subsection (a) discusses situations when university or 

college students are not treated as employees under the 

FLSA. Under this subsection, “University or college students 

who participate in activities generally recognized as extracurricular are generally not considered to be employees within the meaning of the [FLSA].” § 10b24(a) (emphasis added). 
10 No. 16-1558

This subsection then cross-references another section, 

§ 10b03(e), which states the following: 

As part of their overall educational program, 

public or private schools ... 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 of students

in such programs, conducted primarily for the 

benefit of the participants as a part of the educational opportunities provided to the students 

by the school or institution, are not work of the 

kind contemplated by [the FLSA] and do not 

result in an employer-employee relationship 

between the student and the school ... .” 

(emphasis added).

Subsection (b), “[o]n the other hand” discusses situations 

in which “an employment relationship will generally exist 

with regard to students ... .” § 10b24(b). Under this subsection, students who participate in a work-study program and,

for example, “work at food service counters or sell programs 

or usher at athletic events, or who wait on tables or wash 

dishes in dormitories in anticipation of some compensation” 

are “generally considered employees under the [FLSA].” Id. 

Appellants compare NCAA-regulated athletes to the

work-study participants of § 10b24(b) and argue that these

athletes should be deemed employees under the FLSA. In so 

doing, Appellants contend that § 10b24(a)’s reference to “extracurricular” activities and § 10b03(e)’s reference to “inter-
No. 16-1558 11

scholastic athletics” refer only to “student-run, interscholastic club sports,” and not to NCAA-regulated sports. (Appellants’ Br. at 18). To support this argument, Appellants point 

to the many differences between club sports and NCAAregulated sports—the most obvious of which being that club 

sports are largely student-run, whereas NCAA-regulated

sports are heavily supervised by university-employed staff.

We agree that NCAA-regulated sports are very different 

from club sports, but we disagree that this warrants different 

treatment under the clear language of the FOH.

Section 10b24(a) categorically states that students who 

participate in “extracurricular” activities are generally not 

considered employees. Section 10b03(e) includes “interscholastic athletics” in a list of activities that do not constitute 

“work.” These references are not limited to activities that are 

entirely student run. In fact, most of the activities included 

in § 10b03(e)’s list are not student run. Appellants have not

presented any persuasive argument to suggest that the Department of Labor intended to limit this language to studentrun activities. We therefore reject Appellants’ linguistic limitation.

Because NCAA-regulated sports are “extracurricular,”

“interscholastic athletic” activities, we do not believe that the 

Department of Labor intended the FLSA to apply to student 

athletes. We find the FOH’s interpretation of the studentathlete experience to be persuasive.

Appellants in this case have not, and quite frankly cannot, allege that the activities they pursued as student athletes 

qualify as “work” sufficient to trigger the minimum wage 

requirements of the FLSA. Student participation in collegiate 

athletics is entirely voluntary. Moreover, the long tradition 
12 No. 16-1558

of amateurism in college sports, by definition, shows that 

student athletes—like all amateur athletes—participate in 

their sports for reasons wholly unrelated to immediate compensation. Although we do not doubt that student athletes 

spend a tremendous amount of time playing for their respective schools, they do so—and have done so for over a hundred years under the NCAA—without any real expectation 

of earning an income. Simply put, student-athletic “play” is 

not “work,” at least as the term is used in the FLSA. We 

therefore hold, as a matter of law, that student athletes are 

not employees and are not entitled to a minimum wage under the FLSA.

We briefly conclude by addressing Appellants’ argument 

that employment status is an inherently fact-intensive inquiry and thus should not be decided at the motion-todismiss stage. We reject this argument. Because we conclude, as a matter of law, that student athletes are not employees under the FLSA, no discovery or further development of the record could help Appellants. Appellants did 

not and could not allege facts, even taken as true, that give 

rise to a cause of action. See Vanskike, 974 F.2d at 813 (affirming the district court’s grant of a motion to dismiss because 

plaintiffs had failed to establish the existence of an employment relationship).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s 

grant of Appellees’ motions to dismiss.
No. 16-1558 13

HAMILTON, Circuit Judge, concurring. I join Judge Kanne’s 

opinion for the court but wish to add a note of caution. The 

plaintiffs in this case were students who participated in track 

and field at the University of Pennsylvania. Like other Ivy 

League schools, Penn does not offer athletic scholarships. 

Also, as far as I know, track and field is not a “revenue” 

sport at Penn or any other school. In this case, therefore, the 

economic reality and the sometimes frayed tradition of amateurism both point toward dismissal of these plaintiffs’ 

claims. See generally, e.g., O’Bannon v. National Collegiate Athletic Ass’n, 802 F.3d 1049, 1054–55 (9th Cir. 2016) (holding 

that NCAA compensation rules for Division I men’s basketball players and Football Bowl Subdivision football players 

violated federal antitrust laws).

Because the plaintiffs in this case did not receive athletic 

scholarships and participated in a non-revenue sport, they 

pursued a broad theory. The logic of their claim would have 

included not only any college athlete in any sport and any 

NCAA division, but also college musicians, actors, journalists, and debaters. That broad theory is mistaken, as Judge 

Kanne’s opinion explains. I am less confident, however, that 

our reasoning should extend to students who receive athletic 

scholarships to participate in so-called revenue sports like 

Division I men’s basketball and FBS football. In those sports, 

economic reality and the tradition of amateurism may not 

point in the same direction. Those sports involve billions of 

dollars of revenue for colleges and universities. Athletic 

scholarships are limited to the cost of attending school. With 

economic reality as our guide, as I believe it should be, there 

may be room for further debate, perhaps with a developed 

factual record rather than bare pleadings, for cases addressing employment status for a variety of purposes.