The NCAA, led by president Mark Emmert, is being sued by Penn track athletes Taylor Hennig (center) and Gillian Berger (right), whose lawsuit claim athletes deserve the same treatment as work-study students.

Hundreds of college athletes are descending on Franklin Field for the Penn Relays this weekend. They’ll sprint, run for long distances, jump and throw. More than 100 years of NCAA amateurism has told us these activities are purely about play and the love of the sport. But are the Penn Relays and similar Olympic sports events at the college level more than that? Are the athletes also performing what should legally be considered work for their universities?

That question has been proposed by two members of the Penn track team. Gillian Berger and Taylor Hennig are suing the NCAA on the basis that college athletes should be treated the same as work-study employees at universities. That’s to say they should be paid — at least minimum wage — for the practice and competition hours they put in for the schools they attend.

“Everyone understands work-study students,” says Paul McDonald, the lead attorney on the case and managing partner of P L McDonald Law. “Athletes do everything and more. It’s basically work-study on steroids.”

The bad news for Berger and Hennig is the suit is already up against the wall. A judge threw it out in February, reasoning college athletes are legally similar to prisoners in prison. The good news is this happens to lawsuits all the time, and appeals end up being successful (their appeal was filed in mid-March; you can see it below). Taylor Branch, an expert on NCAA reform who was in Philadelphia last month, called it a lawsuit “that should be getting more attention.”

In 2014, Berger, Hennig and another Penn track athlete, Lauren Anderson (she has since withdrawn from the suit) joined a lawsuit that was originally brought forward by a University of Houston soccer player. Hennig, a sprinter who was a member of Penn’s school-record sprint medley relay team, and Berger, a long jumper and sprinter, declined to be interviewed through McDonald. They are still students at Penn, on pace to graduate this spring.

Lawsuits against the NCAA aren’t new. The governing body for American college sports has been sued numerous times over the years by athletes for everything from workers compensation claims to concussions. Recently, Ed O’Bannon won an antitrust lawsuit on the trial level against the NCAA. Similar suits are on the way, and they mainly have one thing in common: They deal with the revenue-producing sports of football and men’s basketball.

Some experts question the efficacy of these cases because of Title IX implications and because of the argument over the true value of athletes to a university. The Berger v. NCAA suit is set up to include male and female athletes of all sports, some who receive full scholarships, some who receive partial scholarships and some who receive no funding from the university. It’s less about the value they bring to a university than the belief they’re performing labor that requires payment in similar circumstances.

McDonald, whose first job out of law school was with the Philadelphia District Attorney’s office, explains the work-study basis through a scenario attendees of the Penn Relays might see this weekend: That of the concession worker. Oftentimes work-study students will be given these types of jobs. They get paid $10 an hour or so for their work, plus a scholarship for their studies, while the athletes competing on track or field below receive no payment.

“You take a work-study job in the library, working at a bookstore or whatever or working in the stands at an athletic event, you still have to be paid for any non-academic work on behalf of university,” McDonald said. “Those people understand it’s not pay as the scholarship.”  

The NCAA has countered that athletes are similar not to employees but students involved in extracurricular activities, like Spanish Club. The federal judge agreed in his ruling.

McDonald says extracurricular clubs involve little or no oversight from university staff. That’s not the case with sports teams, which are led by several coaches. Penn does not include varsity sports in its directory of student-run groups.

Institutions are also required to keep records of how many hours athletes practice during their sporting season and during their off-seasons, similar to timesheets for employees. They’re limited to 20 hours in season and eight hours out of season, though studies have shown athletes in almost every sport exceed these numbers.

Right now, McDonald, Berger and Hennig are waiting on the NCAA’s response to the appeal. The organization has until June 14. At that point, McDonald will have two weeks to reply. From there, it’s up to the court to decide whether to schedule an oral argument and hear again whether these Penn athletes should receive a salary for what they do for the university.

“Our case is actually very simple,” McDonald said. “It’s not even talking about an employee in a nebulous sense, this notion you couldn’t be a student and an employee. You have an example of students who are students and employees.”

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Mark Dent

Mark Dent is a reporter/curator at BillyPenn. He previously worked for the Pittsburgh Post-Gazette, where he covered the Jerry Sandusky scandal, Penn State football and the Penn State administration. His...