Note: Ryan Heisler and I collaborated on this piece. When reading please remember this is a general overview of how United States labor laws would likely apply to the Professional Triathlon Union. Without more specific information it is impossible to evaluate all of the potential implications. — KBG
Yesterday morning (7/29), the Professional Triathlon Union (“PTU”) announced itself to the world. According to its press release, the PTU will be a “new global Union representing all professional non-drafting triathletes and working to improve the sport in its entirety to benefit non-drafting triathletes and all stakeholders.” The initial Board of Directors consists of some of the biggest names in triathlon: Jodie Swallow, Rachel Joyce, Helle Frederiksen, Mirinda Carfrae, Meredith Kessler, Mary Beth Ellis, Angela Naeth, Sebastian Kienle, Pete Jacobs, Dirk Bockel, Dylan McNiece, Tim O’Donnell, James Cunnama, Andreas Dreitz and Scott DeFilippis. The organization is helmed by Rich Allen, a former professional triathlete himself.
The underlying question, then: is PTA a union? At this point, the answer is likely not.
Unions, Independent Contractors and the NLRA
Under the National Labor Relations Act (“NLRA”) employees have the right to attempt to form a union in order to bargain with their employer. The NLRA provides very specific definitions of employee and employer. If an employee-employer relationship exists, employees have the protected right under the NLRA to attempt to organize a union. The putative union then has the obligation to good-faith collective bargaining negotiations with the employer under Section 8(b)(3) of the NLRA.
While professional athletes who participate in team sports such as football, basketball and baseball are employees of their respective teams (e.g. Rob Gronkowski is an employee of the New England Patriots), professional athletes in individual sports are generally not employees; these athletes (including professional triathletes, golfers, tennis players, stock car racers, bull riders and jockeys) are independent contractors.
For those who are interested, there is an eleven (yes, eleven) factor test to determine whether an individual is an independent contractor. The factors are:
- Extent of control by the employer
- Whether or not the individual is engaged in a distinct occupation or business
- Whether the work is usually done under the direction of the employer or by a specialist without supervision
- Skill required in the occupation
- Whether the employer or individual supplies instrumentalities, tools, and place of work
- Length of time for which individual is employed
- Method of payment
- Whether or not work is part of the regular business of the employer
- Whether or not the parties believe they are creating an independent contractor relationship
- Whether the principal is or is not in the business
- Whether the evidence tends to show that the individual is, in fact, rendering services as an independent business
Independent contractor status comes down to the fact that because professional triathletes can chose when, where, how and for whom they race they are independent contractors rather than employees. If professional triathletes were employees of races, the races would exert much more control over the athletes. In such a situation Ironman, for example, would be able to tell an athlete that they needed to race the Calgary 70.3 instead of Whistler 140.6 and that they were prohibited from racing any Challenge events.
What is PTU seeking to do?
The PTU mission statement contains multiple areas of focus:
- Athlete Representation.
- PTU Code Of Conduct.
- PTU Accident Insurance.
- Live Coverage And Tracking.
- PTU Pro Database.
- Communication Channels.
- Prize Purses.
- PTU Athlete Education.
- Drug Testing.
- Gender Equality.
- Non-Drafting Rules.
- Pro Card Criteria.
- PTU Development Grants.
- PTU World Grand Slam Series.
- Ethnic Diversity.
- Athletes’ Volunteer Time.
The PTU states that it seeks to represent all non-drafting athletes; it specifically excludes ITU draft-legal athletes from its scope with the reasoning that sufficient communication and representation exists between national federations, athletes and the ITU. As such, it aims “to be the official communications channel between the Pro triathletes and ALL triathlon stakeholders” (sic from original). Collectively, it seeks to be a single-voice to funnel athlete concerns to race organizations and vice versa. In order to achieve this mission, it asks PTU members to abide by a single code of conduct, which is not currently available.
Membership is offered to professional triathletes via a tiered yearly pricing mechanism: $200 for first-year pros, $400 for second/third year pros, and $600 for four year plus pros. The fee is required to cover administrative costs of the organization. According to the PTU Twitter account, finances of the organization will be publicly available.
Most of the talking points PTU speaks of are that of a trade association, rather than as a union. The most similar organization is the American Medical Association: although not a union, it is a trade association of physicians nationwide that advocates on their behalf and holds members to a standard code of conduct.
There is one potential mission point that could make PTU more like a union: PTU is speaking to WTC and Challenge Family about making membership mandatory in order to race their events. Specifically, according to the PTU website, Challenge has been particularly receptive towards this idea. This would bring pro triathlon closer to that of other professional sports, in that NFL players must join the Players’ Association to play (with a few exceptions, generally relating to lockouts). This action would be the closest to answering the control question from the eleven-step analysis above; Challenge would control the ability of athletes to race their events further by requiring additional conditions be met (let’s note however that Challenge Family is based out of Germany, not the United States so this analysis would like not apply).
The Employer/Employee Relationship Issue
In order for the PTU to be a union under the NLRA and to be afforded all the collective bargaining rights (forming a recognized union and conducting union elections is an entirely separate and complicated issue) an employer-employee relationship would have to exist. That is not something either race organizers or pro triathletes would likely want.
From the race organizer perspective being an employer would require that the organization comply with an entire assortment of laws including Title VII of the Civil Rights Act, American with Disabilities Act, the Pregnancy Discrimination Act and the Fair Labor Standards Act to name a few. In most cases these laws do not currently apply to the relationship between pro triathletes and race organizations (this is why there is likely no cause of action against Ironman for gender discrimination as it relates to #50WomentoKona). As employers race organizers would also be subject to additional tax and insurance liabilities such as the payment of payroll taxes (pro triathletes are currently paid using 1099s) and health insrnace requirements under the Affordable Care Act.
From the athlete’s perspective there are also issues with being classified as an employee. Being an employee means that the who, what, when, where and how of racing can be limited by the employer (think about it in the context of team sports, the organization decides who will play in any particular game, not the players). For example Ironman could prevent its employee athletes from racing for other race organizations such as Challenge. Athlete employees could also be required to enter into non-compete agreements that could prevent for whom the athlete could race after the employment relationship ended. The employer could also dictate an athlete’s race schedule or require an athlete to DNS or DNF at the last minute. Currently pro triathletes have an incredible amount of autonomy in determining their race schedule and in executing their races. If they are employees all that could change.
What Does This Mean for PTU?
Not a whole lot. While PTU uses the term “union” it is really a professional advocacy organization. It doesn’t mean that the PTU can’t effect positive change in the sport of triathlon, it just means that it can’t afford itself of the NRLA or any of its benefits. While the NLRA is a useful law for organizing employees, its probably not particularly useful for a group that will need to contend with the very diverse interests of professional triathletes. Perhaps the best first steps for the PTU are not self anoint itself as a “union” but rather work to build consensus around issues that impact its (potential) members — if the PTU will truly represent all professional triathletes as it claims, there’s a lot of work to do.