The National Collegiate Athletic Association and the University of Pennsylvania prevailed before a panel of the U.S. Court of Appeals for the Seventh Circuit in Berger v. NCAA. The plaintiffs, former track and field athletes for Penn without scholarship grants-in-aid (Penn is a member of the Ivy League, which participates in NCAA Division I but gives no sports scholarships), claimed that they were owed the minimum wage under the FLSA. In March, a federal judge in Indiana dismissed their claims.

On appeal, a three-judge panel of the Seventh Circuit agreed that the student athletes were not “employees” of Penn. As to the NCAA and 120 Division I universities and colleges named as co-defendants in the lawsuit, the court held that they had no relationship with the plaintiffs that would give the plaintiffs “standing” to assert an FLSA claim against them.

With respect to Penn, the court rejected the plaintiffs’ argument that a multifactor test used for determining the employment status of “interns” should apply and that they were “employed” to work for Penn. Instead, the court found that the plaintiffs were not “employees” but were student athletes who play sports voluntarily without any expectation of income. The court found that their activity with Penn was part of the “revered” and “long tradition of amateurism” in collegiate sports. According to the court, “Simply put, student-athletic ‘play’ is not ‘work,’ at least as the term is used in the FLSA.”

In a concurring opinion, Judge David Hamilton provided a cautionary note, distinguishing the Penn track-and-field athletes from athletes in sports that actually generate revenue for their institutions. He noted that based on the plaintiffs’ theory, a finding of “employee” status would also have had to encompass college musicians, journalists, and debaters. He said the theory thus was “mistaken.”

But the plaintiffs haven’t given up. On December 15, their attorney told Bloomberg BNA that they would ask for the case to be reheard by all of the judges on the Seventh Circuit. Will they eke out an overtime victory?