In recent years, college athletes have made multiple attempts to gain protection under various federal labor laws. For example, the NLRB recently rejected an attempt by football players at Northwestern to unionize. Last month, the Seventh Circuit Court of Appeals similarly rejected a claim made by track athletes at the University of Pennsylvania who alleged that they were entitled to payment of wages for their time spent training and in competition under the Fair Labor Standards Act (FLSA).

In Berger v. Nat’l Collegiate Athletic Ass’n, the plaintiffs contended that under the economic realities test, they were FLSA employees similar to work-study participants. The Seventh Circuit rejected this argument, affirming dismissal of the claim. The court noted that under long-standing precedent and Department of Labor guidelines, student athletes’ voluntary participation in amateur extracurricular activities does not create an employment relationship between them and their universities. NCAA regulation of these activities does not remove them from this historic categorization.

The concurring judge noted that his decision is limited to athletes competing in non-revenue sports, and may not equally apply to football and other sports that generate large income for their universities. Given the changing economic structure of college sports, unpaid athletes will likely again attempt to claim some portion of these increasing revenues.