USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
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 condi - tions between men and women athletes have become the subject of significant public atten - tion and litigation. See, Morgan v United States Soccer Fed’n, Inc., granting the Soccer Fed - eration summary judgment on women soccer players’ discrimination claims as to pay under the Equal Pay Act and Title VII and as to field surfaces under Title VII, and denying summary judgment on their claim of discrimination in the provision of charter flights. Following this litiga - tion, the US Soccer Federation reached a set - tlement to pay the US Men’s National Team and the US Women’s National Team equally, along with other considerations. However, claims of gender discrimination in employment by athletes are rare because a prima facie, case of discrimi - nation requires a showing of different treatment between the sexes by a singular employer, and most sports organisations employ players of the same sex. Race, Colour, and National Origin Discrimination Under Title VII and analogous state and local laws, employer sports teams are prohibited from discriminating against players on the basis of their race, colour, and national origin, among other protected characteristics. However, where a sports organisation acts on the basis of a pro - tected characteristic with the goal of remedying its past discrimination, there is generally no vio - lation of Title VII. Protection of Genetic Information Oftentimes, and as directed by the terms of a CBA, employer sports organisations have a role in managing player-employees’ health and
collecting their medical information. Pursuant to Title II of GINA, employer sports organisa - tions are prohibited from discriminating against player-employees on the basis of their genetic information; requesting, requiring, or purchas - ing genetic information about player-employees; disclosing genetic information about player- employees, subject to limited exceptions; or retaliating against player-employees for pro - tected conduct under GINA. GINA also requires that employer sports organisations keep player- employees’ genetic information confidential. Employer sports organisations seeking to take advantage of increased accessibility of genetic testing and advancement of wearable technolo - gies may be limited by GINA’s requirements. 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 exemption from the FLSA’s overtime provisions for athletes generally, the FLSA carves out an exemption for baseball play - ers 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 Under the National Labor Relations Act of 1935 (NLRA), player-employees are entitled to union - ise, collectively bargain with their employer sports organisations, and participate in protect - ed 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 continue in other states. Collective Bargaining
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