USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
Antitrust and Anti-Competitive Concerns Employment contracts between sports teams and players requiring loyalty to the player’s team and league do not unreasonably restrain competition. Additionally, the non-statutory labour exemption to antitrust laws insulates agreements in the CBA from antitrust challenges. In particular, anti-competitive provisions in a CBA may be entitled to the non-statu - tory labour exemption where: • “the restraint on trade primarily affects only the parties to the collective bargaining relationship”; • “the agreement sought to be exempted concerns a mandatory subject of collective bargaining”; and • “the agreement sought to be exempted is the product of bona fide arm’s-length bargaining”. Such protections may not extend to league-wide rules having an anti-competitive effect that have not been negotiated between the players’ union and the sports organisation. See 7.2 Employer/Employee Rights . 7.2 Employer/Employee Rights Anti-Discrimination Protections Under Title VII of the Civil Rights Act of 1964 (“Title VII”), Title I of the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act (ADEA), Title II of the Genetic Information Nondis - crimination Act of 2008 (GINA), and analogous state and local laws, sports organisations are prohibited from discriminating against or harassing their ath - lete-employees on the basis of race, colour, religion, national origin, sex, sexual orientation, disability, age and genetic information. Generally, player-employees are also protected against retaliation for engaging in protected activities, such as: • complaining of unlawful discrimination; • filing a charge of discrimination; and/or • participating in an investigation, lawsuit or other proceeding concerning discrimination. State and local laws may provide protections based on additional protected characteristics. Americans With Disabilities Act Pursuant to Title I of the ADA, and state and local disa - bility laws, employer sports organisations have a duty
to not discriminate against player-employees on the basis of disability, to keep player-employees’ medical information confidential and to provide a reasonable accommodation to player-employees with disabilities absent an undue hardship. The extent to which player- employees may be entitled to reasonable accommo - dations in a profession based on physical ability and competition has not yet been outlined by the courts. Sports organisations may also have a duty to not dis - criminate against players on the basis of disability if they are public accommodations (see PGA Tour, Inc v Martin , 532 US 661, 681 (2001)). Age Discrimination The ADEA and state and local counterparts prohibit discrimination on the basis of age, with the ADEA and many states protecting individuals aged 40 and above. However, sports organisations should ensure that their practices are compliant with the require - ments of an applicable state and/or local laws with a lower protected age, or which do not specify an age threshold. Gender Discrimination Recently, disparities in pay and working conditions between men and women athletes have become the subject of significant public attention and litigation. Morgan v United States Soccer Fed’n, Inc. , granted summary judgment to the Federation on women play - ers’ pay and field surface discrimination claims but allowed their charter flight discrimination claim to pro - ceed. Following this litigation, the Federation settled to provide equal pay for men’s and women’s teams. However, gender discrimination claims in sports are rare, since proving different treatment by a single employer is difficult when most teams employ play - ers of the same sex. Title IX of the Education Amendments of 1972 pro - hibits sex discrimination in any federally funded edu - cation programme, including college athletics, and requires schools to provide equitable participation opportunities, scholarships and resources for men’s and women’s teams. The law has become central in sports law disputes, most notably West Virginia v B.P.J ., which the US Supreme Court heard in early 2026 to determine whether states can bar transgen -
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