* By Bridget Whan Tong
In recent years, student-athletes have increasingly sought additional compensation while they play at university. Student-athletes’ desired compensation ranges from compensation for traveling expenses to ongoing minimum wage compensation. On December 6, 2016, the Seventh Circuit Court of Appeals in Berger v. NCAA affirmed the dismissal by the District Court for the Southern District of Indiana of a University of Pennsylvania student-athletes’ action, which contended that student-athletes were employees eligible for minimum wage compensation under the Fair Labor Standards Act (FLSA). The court determined that the “tradition of amateurism in college sports” defined the relationship between student-athletes and their respective schools, therefore distinguishing the relationship from that of a traditional employee and employer.
Additionally, the court noted that most courts did not consider student-athletes employees “in the worker’s compensation context and [student-athletes] are thus not entitled to compensation from their schools for injuries they suffer while playing their respective sports.” The court finally pointed to Section 10b03(e) of the Department of Labor’s Field Operations Handbook, which describes how participation in extracurricular activities does not generally impart employee status to students within the meaning of the FLSA. In a concurring opinion, Judge Hamilton expressed concern that the appellants’ logic was so broad that it could be applied outside of the context of college athletics.
Is Love of the Sport Blinding?
March Madness is a classic example of how massively college sports have grown; both fans and alumni follow their teams as they compete nationally and wear their gear just as proudly as fans supporting professional sports teams. Those in support of defining student-athletes as employees argue that student-athletes mainly come to universities not for an education, but for athletic competition with the hope of pursuing professional athletic careers post-graduation (which is unlikely). Additionally, universities often advertise and profit from marketing players’ images, names, and performances. Based on the economic benefit that universities incur and the rigor of the student-athletes’ training during university, proponents argue that student-athletes are essentially employees and should be compensated at least through a minimum wage.
While arguments for employee status are compelling, proponents often overlook the compensation that student-athletes currently receive. While individuals often liken the situation of student-athletes to that of unpaid interns, there is a key difference in that unpaid interns are merely receiving academic credit, while many student-athletes are receiving substantial academic-related compensation. Many student-athletes are on scholarships that can cover tuition, living expenses, the cost of class materials, and additional fees. These costs are not insignificant. While arguably not related to student-athletes’ potential primary focus (athletics), covering these academic-related costs provides student-athletes with an education that serves as an insurance policy, should they fall short of their dream of becoming a professional athlete—an unfortunate reality for many graduated student-athletes.
Additionally, Judge Hamilton’s concurrence raises some serious questions as to how far the appellants’ arguments actually reach. Extracurricular activities other than athletics are often very demanding, but provide only academic credit instead of payment. If courts allow student-athletes to be considered employees and paid a minimum wage, what does that mean for members of the marching band, the cheerleaders, or other facets of university life? As the debate continues in the wake of Berger v. NCAA, consideration should be given to what differentiates interscholastic athletics from other equally demanding extracurricular activities similarly seen at the university level.
* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2018, Villanova University Charles Widger School of Law
 See Sarah L. Holzhauer, To Educate or to Make a Profit: Compensating College Athletes’ Families for Travelling Expenses, 23 Jeffrey S. Moorad Sports L.J. 509, 510 (2016) (highlighting inconsistent history of student-athlete compensation).
 See id. (outlining arguments for student-athlete compensation for traveling expenses); see also Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285 (7th Cir. 2016) (deciding whether student-athletes should be given minimum wage compensation).
 See Berger, 843 F.3d at 288 (considering whether “student athletes are employees who are entitled to a minimum wage under the Fair Labor Standards Act”).
 Id. at 291 (positing amateur nature of university level sports distinguishes from employee-employer relationships enjoyed at professional level).
 Id. at 292 (finding comparable holding in Rensing v. Ind. State Univ. Bd. of Trustees, 444 N.E.2d 1170 (Ind. 1983)).
 See id. at 293 (describing concerns with broader implications of appellant’s argument). Section 10b03(e) of The Field Operations Handbook states:
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.
Id. at 292–93 (quoting United States Dep’t of Labor, Field Operations Handbook § 10b03(e), available at https://www.dol.gov/whd/FOH/FOH_Ch10.pdf) (emphasis in original).
 See Berger, 843 F.3d at 294 (Hamilton, J., concurring). Judge Hamilton wrote:
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.
Id. (Hamilton, J., concurring).
 See Rodd Wagner, The Not-So-Sweet 16 Reasons College Athletes Are Really Employees, Forbes (Mar. 24, 2016, 1:11 PM), http://www.forbes.com/sites/roddwagner/2016/03/24/the-not-so-sweet-16-reasons-college-athletes-are-really-employees/#1a5b963945ae (describing March Madness and the growth of university sport industries).
 See id. (asserting student-athletes’ primary goal is pursuit of a career as a professional athlete). See also Probability of Competing Beyond High School, NCAA, http://www.ncaa.org/about/resources/research/probability-competing-beyond-high-school (last visited Jan. 26, 2017) (estimating that of approximately 8 million athletes playing in high school, approximately “480,000 of them will compete at NCAA schools. And of that group, only a fraction will realize their goal of becoming a professional athlete”); NCAA Recruiting Facts, NCAA, https://www.ncaa.org/sites/default/files/Recruiting%20Fact%20Sheet%20WEB.pdf (last visited Jan. 26, 2017) (providing statistics of individuals attaining position as professional athlete for each sport and all sports generally).
 See Wagner, supra note 8 (claiming student-athletes’ names, images, and performance are products from which universities profit, thereby making student-athletes more than amateurs and closer to employees).
 See id. (viewing work student-athletes do, paired with universities arguable exploitation of student-athletes, as evidence of employee-employer relationship); see also Sally Jenkins, Are College Athletes the Same as Prisoners? These Judges Seem to Think So., Wash. Post (Jan. 5, 2017), https://www.washingtonpost.com/sports/colleges/are-college-athletes-the-same-as-prisoners-these-judges-seem-to-think-so/2017/01/05/ae05a772-d358-11e6-945a-76f69a399dd5_story.html?utm_term=.6a31dd138728 (recognizing student-athletes are “well recompensed through their scholarships,” but contending that they should be compensated more, because “they put in more hard labor than any work-study student toiling in the college library or cafeteria for wages”).
 See Jenkins, supra note 11 (comparing student-athletes’ current position to prisoners or unpaid interns).
 See Wagner, supra note 8 (“The foundation of any working relationship is defining the respective roles . . . Getting the definition wrong is an invitation to abuse. It’s the reason unpaid internships get a high degree of legal scrutiny.”). Compare The Internship: Generation I, The Economist (Sept. 12, 2014), http://www.economist.com/news/international/21615612-temporary-unregulated-and-often-unpaid-internship-has-become-route (describing unpaid internships and universities’ encouragement through academic credit) with Scholarships, NCAA (last visited Jan. 26, 2017), http://www.ncaa.org/student-athletes/future/scholarships (listing academic-related coverage of scholarships).
 See Wagner, supra note 8 (admitting student-athletes are already being compensated through scholarships). “While it is true that the players do not receive a paycheck in the traditional sense, they nonetheless receive a substantial economic benefit for playing football.” Id. (quoting Peter Sung Ohr, Chicago Regional Director of the National Labor Relations Board). See also Jenkins, supra note 10 (recognizing compensation through scholarships). See generally Holzhauer, supra note 1, at 529–30 (describing benefits student-athletes receive and public perception of attempts for additional compensation).
Despite these athletes’ vehement protests that this type of litigation is their only mechanism for seeking adequate payment for the money they bring in, the majority of the public, including coaches and players, oppose compensation, believing that scholarships and the advantages of being a student-athlete are sufficient opportunities. Such lawsuits demonstrate these student-athletes’ are attempting to bite the hands that feed them.
 See NCAA Scholarships and Grants, NCAA, http://www.ncaa.org/about/resources/ncaa-scholarships-and-grants (last visited Jan. 26, 2017) (providing links to student-athlete awards ranging from $7,500 to $24,000).
 See Scholarships, supra note 13 (“Of the student-athletes participating in sports with professional leagues, very few become professional athletes. A college education is the most rewarding benefit of the student-athlete experience.”).
 See Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 293 (7th Cir. 2016) (describing concerns with broader implications of appellant’s logic).
 See Audition FAQ, Pa. State Univ. Marching Blue Band, https://blueband.psu.edu/audition/faq (last visited Jan. 26, 2017) (designating minimum of approximately 10 hours per week of rehearsals for marching band members). See also Courses, Department of Theatre and Dance, Univ. of Richmond, http://theatredance.richmond.edu/courses/index.html (last visited Jan. 26, 2017) (listing various practicum academic credit opportunities for work in theatre: .25 credits for 40 hours of work, typically done during tech week).
 See Berger, 843 F.3d at 293 (considering concerns of appellant’s broad logic and possible implications). See also Audition FAQ, supra note 18 (describing time commitment for marching band at Penn State); Cheer Squad Auditions, UCLA Cheer Squad, http://spirit.ucla.edu/join/audition-cheer.aspx (last visited Jan. 26, 2017) (providing extensive schedules for cheerleaders between rehearsals and performances).
 See Berger, 843 F.3d at 293 (trying to distinguish student-athletes from students participating in other extracurricular activities).