USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
der girls/women from participating on girls’/women’s sports teams. Additionally, a group of female student- athletes filed an appeal challenging the House v NCAA settlement, arguing that its distribution of NIL back- pay creates gender inequities and violates Title IX protections. Race, Colour and National Origin Discrimination Under Title VII and analogous state and local laws, employer sports teams are prohibited from discrimi - nating against players on the basis of their race, col - our and national origin, among other protected char - acteristics. However, where a sports organisation acts on the basis of a protected characteristic with the goal of remedying its past discrimination, there is generally no violation of Title VII. Protection of Genetic Information Depending on the terms of a CBA, employer sports organisations manage player-employees’ health and collect their medical information. However, Title II of GINA prohibits employer sports organisations from: • discriminating against player-employees on the basis of their genetic information; • requesting, requiring or purchasing genetic infor - mation about player-employees; • disclosing genetic information about player- employees, subject to limited exceptions; or • retaliating against player-employees for protected conduct under GINA. GINA also requires that employer sports organisations keep player-employees’ genetic information confiden - tial. Employer sports organisations’ use of increasingly accessible genetic testing and advancement of wear - able technologies may be limited by GINA’s require - ments. Wage and Hour Law The Fair Labor Standards Act of 1938 (FLSA) and state and local wage and hour laws require that employer sports organisations pay all players the minimum wage, and most players overtime premiums for hours worked over 40. Although there is no explicit exemp - tion from the FLSA’s overtime provisions for athletes generally, the FLSA carves out an exemption for base - ball players during the regular championship season
as long as they are paid at least the minimum wage for 40 hours weekly. Florida and California have recently enacted similar provisions in their state wage and hour laws, and lobbying efforts may continue in other states. Collective Bargaining Under the National Labor Relations Act of 1935 (NLRA), player-employees are entitled to unionise, col - lectively bargain with their employer sports organisa - tions and participate in protected concerted activity. Under the NLRA, a sports organisation may not take unilateral action on terms affecting “wages, hours, and other terms and conditions of employment”, such as free agency, first refusal provisions, salary arbitration, the college draft, salary caps, minimum individual salaries and fringe benefits, because these are man - datory subjects of bargaining (see 29 USC § 158 (d)). Despite the traditional view that student-athletes are not employees, recent National Labor Relations Board (NLRB) actions signalled a willingness to treat them as such, including a 2024 regional decision finding Dartmouth men’s basketball players eligible to union - ise and a NLRB complaint alleging that the NCAA and related entities misclassified athletes to deny them NLRA rights. However, in January 2025 those efforts were withdrawn, with the unions citing evolving legal and regulatory changes – such as expanded NIL compensation and anticipated reforms allowing direct athlete pay – as reasons to allow time for the new compensation framework to develop before litigating employee status. Unemployment Benefits The Federal Unemployment Tax Act requires the Sec - retary of Labor to reject any state’s unemployment programme if it provides unemployment benefits to professional athletes who are not playing between seasons if they are expected to play the next season (see 26 USC § 3304 (a)(13)). Workers’ Compensation Whether and the extent to which a professional athlete is entitled to workers’ compensation for injuries sus - tained while working varies from state to state.
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