USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
Unemployment Benefits The Federal Unemployment Tax Act requires the Secretary of Labor to reject any state’s unemployment programme if it provides unem - ployment 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 sustained while working varies from state to state. Worker Adjustment Retraining Notification Act of 1988 (WARN Act) The WARN Act and its state analogues require employer sports organisations to provide employees, their representatives, and certain governmental officials with advance notice of closings and layoffs affecting a threshold number of employees. Under federal law, and in many states, employers including sports organisations are not required to provide WARN notices for The Immigration Reform and Control Act (IRCA) prohibits employers from discriminating on the basis of an individual’s real or perceived citizen - ship or national origin. These IRCA protections do not apply to employers with three or fewer employees, to claims already under consid - eration with the Equal Employment Opportu - nity Commission under Title VII, or to situations where citizenship status is required by law or by government contract. The IRCA protects citi - zens and aliens actively pursuing citizenship and prohibits employers from enacting blanket hiring policies restricting employment to US citizens. lockouts during labour disputes. 7.3 Free Movement of Athletes The IRCA
agency, first refusal provisions, salary arbitra - tion, the college draft, salary caps, minimum individual salaries, and fringe benefits, because these are mandatory subjects of bargaining. See 29 USC § 158(d). Despite student athletes not being classified as employees, in late 2023, the Service Employ - ees International Union filed a petition with the National Labor Relations Board (NLRB) seeking to represent members of the Dartmouth College men’s basketball team in collective bargaining, which action was challenged by the college. In 2024, a regional director of the NLRB issued a decision determining that all basketball players on the men’s varsity basketball team constituted a unit appropriate for collective bargaining. Ear - lier in 2023, following the filing of an unfair labour practice charge, the NLRB issued a complaint alleging that the University of California, the Pac-12 Conference, and the NCAA misclassi - fied student athletes as non-employees, in order to intentionally deprive the student athletes of their rights under the NLRA. However, in January 2025, the union withdrew the Dartmouth College NLRB petition, and the National College Play - ers Association (NCPA) moved to withdraw the charge against the University of California, the Pac-12 Conference, and the NCAA. In seeking to withdraw the charge, the NCPA explained this decision was based on numerous factors – including that multiple states now have laws permitting universities to directly pay athletes NIL money and a preliminary federal court set - tlement agreement that would allow universities to directly compensate athletes – and thus the NCPA seeks to provide adequate transition time under these contemplated legal changes before athletes’ employee status is ruled upon.
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