USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
CBAs between players’ unions and sports organisations also typically require the league and teams to spend a guaranteed amount on player compensation. 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 com - petition. Additionally, the non-statutory labour exemption to antitrust laws insulates agree - ments in the CBA from antitrust challenges. In particular, anti-competitive provisions in a CBA may be entitled to the non-statutory labour exemption where: • “the restraint on trade primarily affects only the parties to the collective bargaining rela- tionship” ; • “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. With respect to student athletes, NCAA rules limiting education-related benefits, such as scholarships for graduate school, payments for academic tutoring, or paid post-eligibility intern - ships, violate the Federal Antitrust Act. 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 Disa - bilities Act of 1990 (ADA), the Age Discrimina - tion in Employment Act (ADEA), Title II of the
Genetic Information Nondiscrimination Act of 2008 (GINA), and analogous state and local laws, sports organisations are prohibited from discriminating against or harassing their athlete- 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 retalia - tion 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 disability laws, employer sports organisations have a duty to not discriminate against player- employees on the basis of disability, to keep player-employees’ medical information con - fidential, and to provide a reasonable accom - modation to player-employees with disabilities absent an undue hardship. The extent to which player-employees may be entitled to reason - able accommodations 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 discriminate against players on the basis of dis - ability 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 pro - hibit discrimination on the basis of age, with the ADEA and many states protecting individuals aged 40 and above. However, sports organi - sations should ensure that their practices are compliant with the requirements of an applicable
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