The paradox of ‘non‐union unions’: The risks of extending antitrust immunities without labor law's protections

Abstract This Article critically examines the recent movement to extend collective bargaining rights and antitrust immunity to non‐employee labor groups, spurred by the First Circuit's 2022 decision in Confederación Hípica de Puerto Rico v. Confederación de Jinetes. Historically, labor under the Clayton Act and the National Labor Relations Act (NLRA) have been limited to employees, safeguarding unions from antitrust scrutiny while requiring employer neutrality in union organization. Yet, the First Circuit extended the Clayton Act's labor exemption to a group of independent contractor jockeys, challenging the traditional employee‐focused framework. As Congress and state and local governments consider further expansions of bargaining rights to non‐employees, new tensions emerge. This Article argues that granting collective bargaining rights to non‐employee groups—without the corresponding employee protections of the NLRA and Fair Labor Standards Act—would significantly harm labor markets and weaken labor's power in collective bargaining. By examining college sports and the gig economy as case studies, we demonstrate how non‐employee bargaining heightens the risk of “sham” labor groups that allow employers to structure labor groups favorably and unionization's inherent checks and balances, starting labor off at an extreme disadvantage in collective bargaining negotiations. This Article calls for a reevaluation of non‐employee bargaining exemptions to ensure robust protections for all workers, avoiding the pitfalls of employer‐dominated bargaining frameworks that offer the antitrust immunity “carrot” without the accompanying labor law “stick.”