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W
ORKING
T
OWARD
B
REAK
P
OINT
:
P
ROFESSIONAL
T
ENNIS AND THE
G
ROWING
P
ROBLEM WITH
E
MPLOYEE
AND
I
NDEPENDENT
C
ONTRACTOR
M
ISCLASSIFICATIONS
Elizabeth Priest*
ABSTRACT
An often overlooked yet extremely pressing issue in the U.S. econ-
omy is the misclassification of workers as independent contractors
when they are actually employees. Because of such misclassifications,
workers are denied their rights to federal antidiscrimination protec-
tions and the ability to collectively bargain through unions. Courts
across the country utilize a variety of legal tests to determine if a
worker is an employee or an independent contractor. The three most
important legal tests are the right to control test, the economic realities
test, and the ABC test.
Using men’s professional tennis as a case study, this Comment ar-
gues for the uniform adoption of the ABC test. As a pertinent exam-
ple, tennis players are incorrectly classified as independent contractors
under current legal frameworks. The ABC test provides the best an-
swer to the independent contractor problem because it is the most
straightforward, adaptable, and beneficial for both employers and
workers.
TABLE OF CONTENTS
I. INTRODUCTION ........................................ 944
II. HISTORICAL BACKGROUND: TENNIS AND LABOR
LAW...................................................... 947
A. D
EVELOPMENT OF
P
ROFESSIONAL
T
ENNIS
O
RGANIZATIONS
...................................... 947
1. Association of Tennis Professionals’ Evolution from
Union to Governing Body ......................... 947
https://doi.org/10.25172/smulr.75.4.8.
* J.D. Candidate, SMU Dedman School of Law, 2023; B.A., Psychology & History,
Texas A&M University, 2020. This author would like to thank God first and foremost, as
well as her parents for their constant support. This author is especially grateful to her two
favorite tennis players, Bill Priest and Dr. Bob Priest, for inspiring a love of the sport.
943
944 SMU LAW REVIEW [Vol. 75
2. United States Tennis Association and the Decline of
American Tennis .................................. 949
3. Professional Tennis Players Association as a New
Union ............................................. 950
B. A B
RIEF
H
ISTORY OF
U.S. L
ABOR
L
AW AND
W
ORKER
C
LASSIFICATION
....................................... 951
1. National Labor Relations Act ...................... 951
2. Fair Labor Standards Act ......................... 952
3. Development of the Main Legal Tests .............. 952
III. CURRENT STATE OF TENNIS ORGANIZATIONS
AND U.S. LABOR LAWS ............................... 954
A. F
LAWED
S
TRUCTURES OF
P
ROFESSIONAL
T
ENNIS
O
RGANIZATIONS
...................................... 954
B. C
OMPARING
C
URRENT
S
TRUCTURES OF
O
THER
P
ROFESSIONAL
S
PORTS
O
RGANIZATIONS
............... 954
C. T
ODAY
’
S
F
RAGMENTED
L
EGAL
D
EFINITIONS OF
I
NDEPENDENT
C
ONTRACTORS AND
E
MPLOYEES
....... 957
1. The Right to Control Test ......................... 957
2. The Economic Realities Test ....................... 958
3. The ABC Test ..................................... 959
a. California’s Adoption of the ABC Test ........ 959
b. Protecting the Right to Organize Act ......... 960
IV. HOW THE ABC TEST SOLVES ISSUES OF
MISCLASSIFICATION ................................... 961
A. T
ENNIS
P
LAYERS
’ M
ISCLASSIFICATION AS
I
NDEPENDENT
C
ONTRACTORS
......................... 961
1. No Protection Under Federal Antidiscrimination
Laws .............................................. 962
2. Massive Pay Gaps Between Players ................ 964
3. Tennis Players Are Employees Under the ABC Test
................................................... 965
4. The ATP as an Employer ......................... 966
B. A
RGUMENT FOR THE
U
NIFORM
A
DOPTION OF THE
ABC T
EST
............................................ 967
1. Potential Issues with Tennis Unionization .......... 968
2. Potential Issues with Using the ABC Test .......... 968
3. The ABC Test Is the Best Fit for Both Employers
and Workers ...................................... 970
V. CONCLUSION ........................................... 971
I. INTRODUCTION
P
ROFESSIONAL tennis dominated news headlines in January 2022
after Serbian tennis champion Novak Djokovic was deported from
Australia after a series of legal battles with Australian government
2022] Working Toward Break Point 945
officials over his visa and vaccination status.
1
The Serbian was ordered to
leave the country after a panel of three judges upheld the Australian im-
migration minister’s cancellation of the tennis player’s visa—just one day
before the start of the Australian Open, one of the largest events in pro-
fessional tennis.
2
Before ultimately deporting Djokovic back to Serbia,
the Australian government had already canceled his visa once before due
to his refusal to receive the COVID-19 vaccine.
3
Djokovic, the number
one player in the world at the time, had originally received a medical
exemption from the Australian government to enter the country and play
in the Australian Open in Melbourne, a tournament he has won a record
nine times.
4
In response to Djokovic’s situation, Canadian tennis player
Vasek Pospisil publicly stated that the Association of Tennis Professionals
(ATP), the governing organization of men’s tennis,
5
was displaying “a
complete lack of leadership” by initially remaining silent on Djokovic’s
deportation and not helping their players navigate Australia’s strict visa
requirements to play in the tournament.
6
For the past two years,
Djokovic and Pospisil have worked together to advocate for the forma-
tion of a tennis players’ union, believing that the ATP does not care for
and is not accountable to its players.
7
However, creating a union for ten-
nis players may not be as straightforward an endeavor as it is in other
professional sports.
When many people think of professional tennis players, they think of
world-renowned champions like Roger Federer and Rafael Nadal, who
are among the highest-paid athletes in the world and have achieved near-
billionaire status.
8
It is not initially clear that high-powered athletes like
Federer and Nadal would even need a union to represent them. In reality,
however, the vast majority of players on tour struggle financially and can-
1. See Michael E. Miller, Novak Djokovic Deported, Won’t Compete in Australian
Open After Bid to Play Unvaccinated Fails, W
ASH
. P
OST
(Jan. 16, 2022, 4:47 PM), https://
www.washingtonpost.com/world/2022/01/15/novak-djokovic-australia-visa [https://
perma.cc/6SPJ-NB88].
2. Id.
3. Damien Cave, Christopher Clarey & Yan Zhuang, Australia’s Immigration Minis-
ter Revokes Djokovic’s Visa on ‘Health and Good Order’ Grounds, N.Y. T
IMES
(Jan. 16,
2022), https://www.nytimes.com/live/2022/01/14/sports/novak-djokovic-australia [https://
perma.cc/X7E3-JB94].
4. See Austin Ramzy, Catching Up on the Djokovic Story? Here’s What to Know,
N.Y. T
IMES
(Jan. 16, 2022), https://www.nytimes.com/live/2022/01/14/sports/novak-
djokovic-australia [https://perma.cc/X7E3-JB94].
5. ATP: Role, Chairman, Structure, All You Need to Know About the Governing
Body of Men’s Tennis, T
ENNIS
M
AJORS
(Mar. 1, 2020), https://www.tennismajors.com/atp/
atp-role-chairman-structure-all-you-need-know-81433.html [https://perma.cc/KH4Z-
2PME].
6. Vasek Pospisil Calls Out ATP for ‘Lack of Leadership’ in Djokovic Case, S
PORT-
S
N
ET
(Jan. 8, 2022, 6:02 PM), https://www.sportsnet.ca/tennis/article/vasek-pospisil-calls-
atp-lack-leadership-djokovic-case [https://perma.cc/58N6-FAPN].
7. See id.
8. See Michael Steinberger, A Few Tennis Pros Make a Fortune. Most Barely Scrape
By., N.Y. T
IMES
(June 29, 2021), https://www.nytimes.com/2021/06/29/magazine/tennis-
players-association.html [https://perma.cc/2R4E-8973].
946 SMU LAW REVIEW [Vol. 75
not support their tennis careers.
9
For instance, Chris O’Connell, an Aus-
tralian player ranked 79th in the world,
10
had to work retail in a
Lululemon store and clean boats as side jobs to support himself.
11
On
tour in 2019—and before the impact of the COVID-19 pandemic—
O’Connell won more matches than any male or female tennis profes-
sional that year, yet after all his expenses for playing on the tour, he en-
ded the year with roughly $15,000 in earnings.
12
The world of men’s professional tennis serves as a particularly relevant
case study to argue for expanding the definition of “employee” by chang-
ing the current legal standards. According to labor laws in the United
States, professional tennis players are considered independent contrac-
tors, not employees, and are therefore unable to unionize in the same
way many other athletes in team sports can.
13
Currently, the definition of
“employee” is one of the most controversial and heavily litigated issues in
labor and employment law.
14
This is largely because employees are pro-
tected under federal antidiscrimination laws; can claim unemployment in-
surance, workers’ compensation, and family and medical leave; are able
to unionize and participate in protected, concerted activities; and receive
wage and hour protections.
15
Independent contractors, on the other hand,
get none of these benefits or protections.
16
The legal frameworks used
today to define an employee are greatly flawed; they do not take the
proper factors into account and are far too convoluted and disjointed.
The U.S. Department of Labor has even stated that the “misclassification
of employees as independent contractors presents one of the most serious
problems facing affected workers, employers[,] and the entire
economy.”
17
This Comment focuses on men’s professional tennis because of its cur-
rent relevance and helpful comparison to other sports, but the ideas ex-
pressed throughout are applicable to all industries dealing with the
employee versus independent contractor crisis. Due to this general appli-
cability to other industries throughout the United States, this Comment
9. See id.
10. Christopher O’Connell: Overview, ATP T
OUR
, https://www.atptour.com/en/play-
ers/christopher-o%27connelloconnell/o483/overview [https://perma.cc/5ZVF-H8ZL]
(ranking is current through November 2022).
11. Steinberger, supra note 8.
12. Id.
13. Alex N. Press, Men’s Tennis Players Are Weighing Unionization. But It’s Easier
Said than Done., J
ACOBIN
(Sept. 2, 2020), https://jacobin.com/2020/09/tennis-association-
organizing-djokovic-pospisil [https://perma.cc/WR5Q-3BPF].
14. Eric Markovits, Note, Easy as ABC: Why the ABC Test Should Be Adopted as the
Sole Test of Employee-Independent Contractor Status, 2020 C
ARDOZO
L. R
EV
.
DE NOVO
224, 225.
15. Id.
16. Id.
17. Blake E. Stafford, Comment, Riding the Line Between “Employee” and “Indepen-
dent Contractor” in the Modern Sharing Economy, 51 W
AKE
F
OREST
L. R
EV
. 1223, 1223
(2016) (quoting Misclassification of Employees as Independent Contractors, U.S. D
EP
’
TOF
L
ABOR
, https://www.dol.gov/agencies/whd/flsa/misclassification [https://perma.cc/QV9D-
7X8A]).
2022] Working Toward Break Point 947
discusses U.S. labor laws as they apply to tennis players in the United
States. Part II of this Comment delves into the background of profes-
sional tennis and the organizations that govern the sport to trace the de-
velopment of these organizations from their beginnings as players’ unions
to the governing bodies themselves. This history covers the founding of
the Association of Tennis Professionals (ATP), the background of the
United States Tennis Association (USTA), and the current development
of the Professional Tennis Players Association (PTPA). Additionally,
Part II discusses the history and evolution of the laws governing labor
organizations and employment in the United States, including the Na-
tional Labor Relations Act (NLRA) and the Fair Labor Standards Act
(FLSA).
Part III explains the current structure of professional tennis organiza-
tions to demonstrate why these institutions, in their current states, are not
beneficial to players. Part III compares professional sports that classify
athletes as employees who can unionize and those that classify athletes as
independent contractors who have fewer rights. In addition, this Part also
gives an overview of how U.S. law defines independent contractors and
employees, including what tests courts typically use to differentiate the
two classifications. The three legal tests discussed in this Part are the right
to control test, the economic realities test, and the ABC test.
Part IV utilizes the example of men’s professional tennis to argue that
an unmeasurable amount of workers across all industries have been mis-
classified as independent contractors instead of employees. This Part ana-
lyzes the consequences of such misclassifications. Lastly, Part V
concludes that the uniform adoption of the ABC test across the country is
the solution to the independent contractor misclassification problem.
II. HISTORICAL BACKGROUND: TENNIS AND LABOR LAW
A. D
EVELOPMENT OF
P
ROFESSIONAL
T
ENNIS
O
RGANIZATIONS
1. Association of Tennis Professionals’ Evolution from Union to
Governing Body
The “Open Era” of professional tennis, as it is known today, began in
1968 when the International Tennis Federation (ITF) began holding
“open events” in which both amateurs and professionals could play to
win prize money.
18
Prior to this change in 1968, tennis tournaments were
held for amateurs only and did not offer any prize money.
19
From then
on, the sport of professional tennis truly began to take shape. While at
the 1972 U.S. Open, a group of the top professional players gathered to-
gether in a crowded stairwell and came up with the idea to form a new
18. George Andrew Metanias, Thomas Joseph Cryan & David W. Johnson, A Critical
Look at Professional Tennis Under Antitrust Law, 4 U. M
IA
. E
NT
. & S
PORTS
L.J. 57, 60
(1987); Jon Crim, Open Era in Tennis, 1968, T
ENNIS
C
OMPANION
, https://tenniscompa-
nion.org/open-era-in-tennis [https://perma.cc/4F28-WHNP].
19. Metanias, Cryan & Johnson, supra note 18, at 58, 60.
948 SMU LAW REVIEW [Vol. 75
players’ association.
20
In that hidden stairwell at Forest Hills Stadium in
New York, these players created the Association of Tennis Professionals,
more commonly known as the ATP.
21
One of the main goals of the newly
founded ATP was to establish a fair, objective system of ranking players
because rankings influence players’ abilities to enter into tournaments
and thus win prize money to support their careers.
22
The members of the
ATP came up with a computerized ranking system that is still in use today
to determine seeding for tournaments and to decide which player will be
crowned “number one” at the end of each year.
23
Before the founding of the ATP in 1972, the players had no means by
which they could make their voices heard.
24
In 1973, after the ITF sus-
pended Croatian tennis player Niki Pilic for six months following his re-
fusal to represent Yugoslavia for political reasons at the Davis Cup
international tournament, eighty-one players boycotted Wimbledon.
25
This boycott marked one of the first times the members of the newly
formed ATP engaged in concerted action against the governing bodies
that allowed players such little control.
26
After this boycott, from 1974 to
1989, a new organization called the Men’s Tennis Council oversaw men’s
tennis.
27
The Men’s Tennis Council consisted of representatives from the
ITF, the ATP, and international tournament directors.
28
Though this was
a step in the direction of more player control, there was still a lot of work
to be done for players to gain fair representation.
By 1986, the players were again unsatisfied with their representation on
the Men’s Tennis Council, and they felt that their interests were still not
being prioritized by the governing bodies and tournaments.
29
In 1988 at
the U.S. Open, a group of top players gathered in a parking lot, along
with then-ATP CEO Hamilton Jordan, and set up the now famous “Press
Conference in the Parking Lot” to garner more support for the players’
movement.
30
The main focus of the press conference was to announce the
ATP’s plans to set up its own tour and events.
31
After this, the ATP also
20. History, ATP T
OUR
, https://www.atptour.com/en/corporate/history [https://
perma.cc/P3WP-HDSJ].
21. Id.
22. See id.
23. Bradley Raboin, Accepting a Double-Fault: How ADR Might Save Men’s Profes-
sional Tennis, 3 M
ISS
. S
PORTS
L. R
EV
. 206, 210 (2014).
24. See Robbie Salaman, Labor War Looms Large Over Tennis, L
EGAL
B
LITZ
(Feb. 1,
2012), http://thelegalblitz.com/blog/2012/02/01/labor-war-looms-large-over-tennis [https://
perma.cc/QVD4-QQ8C].
25. Id.
26. See Steve Tignor, 1973: The Men Boycott Wimbledon and Shift Power to the Play-
ers, T
ENNIS
.
COM
(Mar. 19, 2015), https://www.tennis.com/news/articles/1973-the-men-boy-
cott-wimbledon-and-shift-power-to-the-players [https://perma.cc/G8V5-YY4P].
27. History, ATP T
OUR
, supra note 20.
28. Id.
29. See James Buddell, The Tour Born in a Parking Lot, ATP T
OUR
(Aug. 30, 2013),
https://www.atptour.com/en/news/heritage-1988-parking-lot-press-conference-part-i [https:/
/perma.cc/VK7F-N35G].
30. History, ATP T
OUR
, supra note 20.
31. See Buddell, supra note 29.
2022] Working Toward Break Point 949
came to be known as the “ATP World Tour,” and to this day, it owns and
oversees all men’s tennis events other than the four Grand Slams.
32
As the ATP evolved from its beginnings as a players’ union into a ten-
nis governing body, many players began to feel that the ATP did not re-
present their best interests anymore.
33
At the 2012 Australian Open, a
large group of the top men’s players came together to discuss a potential
strike and refusal to play in the tournament altogether.
34
The players’
main grievances were that their schedules were largely overpacked, they
received little time off between tournaments, and the tournament admin-
istrators only shared a very low proportion of the prize money with the
players.
35
However, the threats of strike never came to fruition, and the
Australian Open continued on without further incident that year.
36
Even
though the strike never materialized, the possibility of it still highlighted
some of the most pervasive issues in professional sports where athletes
are afforded no official representation.
37
2. United States Tennis Association and the Decline of American
Tennis
Within the United States, the main governing body of professional ten-
nis is the United States Tennis Association (USTA).
38
The USTA oper-
ates as a nonprofit organization and oversees professional tennis events
within the United States—most notably the U.S. Open—as well as com-
munity tennis and developing top American tennis talents.
39
In the past
twenty years, there has been a significant decline in the number of top-
ranked American tennis players.
40
As of November 2022, the highest-
ranked American men’s player was twenty-five-year-old Taylor Fritz,
ranked ninth in the world,
41
and the highest-ranked American women’s
player was twenty-eight-year-old Jessica Pegula, ranked third in the
world.
42
In previous decades, American tennis players such as Pete Sam-
pras, Andre Agassi, and Serena and Venus Williams were repeatedly
ranked the best in the world.
43
The last time an American man won a
Grand Slam was in 2003 when Andy Roddick won the U.S. Open.
44
32. Salaman, supra note 24.
33. See Raboin, supra note 23, at 207, 211.
34. Id. at 206.
35. Salaman, supra note 24.
36. Raboin, supra note 23, at 206.
37. See id. at 206–07.
38. Nels Popp, Jason Miller & Marion Hambrick, Break Point for the USTA: Develop-
ing a Strategic Vision for the United States Tennis Association, 2 C
ASE
S
TUD
. S
PORT
M
GMT
.
1, 1 (2013).
39. See id. at 2–3.
40. See id. at 5.
41. Singles Rankings, ATP T
OUR
, https://www.atptour.com/en/rankings/singles [https:/
/perma.cc/7MFQ-ZCBP] (ranking is current through November 2022).
42. Singles Rankings, WTA T
OUR
, https://www.wtatennis.com/rankings/singles [https:/
/perma.cc/WB83-DJUA] (ranking is current through November 2022).
43. See Popp, Miller & Hambrick, supra note 38, at 5.
44. Steven Wine, No Sign of Grand Slam Drought Ending Soon for American Men,
A
SSOCIATED
P
RESS
(Feb. 10, 2021), https://apnews.com/article/mens-tennis-australia-mel-
950 SMU LAW REVIEW [Vol. 75
Americans are just not as dominant in the tennis world as they used to
be.
45
Some experts believe this decline can be attributed to new coaching
styles, the rising costs of playing tennis, and the lack of scholarships avail-
able for tennis players to play at colleges and universities.
46
Another ex-
planation is that tennis is simply not as appealing to young American
athletes, who would rather invest time and money into more popular
sports like football or basketball.
47
Professional athletes in football, basketball, and baseball are repre-
sented by unions that offer their members better schedules and more at-
tractive salaries.
48
Without a players’ union in the United States,
professional tennis will soon fall by the wayside, unable to keep up with
the ever-increasing popularity of unionized professional sports. The rela-
tively lower rankings of current American tennis players compared to
American players twenty years ago reflect a decline in interest and sup-
port given to the sport of tennis in the United States.
3. Professional Tennis Players Association as a New Union
By 2019, a few players who held important positions on the ATP Player
Council were beginning to have conversations about starting an indepen-
dent organization to better represent them.
49
They felt that the ATP,
originally founded to serve the players’ interests, had become an “anti-
competitive organization” entangled in too many conflicts of interest be-
tween the tournaments and the players themselves.
50
Novak Djokovic and Vasek Pospisil were both part of a campaign
against former ATP chairman Chris Kermode in 2019 that successfully
ousted Kermode from his position.
51
They felt that Kermode was consist-
ently on the side of the tournaments while ignoring the players, but other
players were angered by Kermode’s unseating and resigned from the
Player Council in protest.
52
This created a rift between the pro-ATP play-
ers and the players trying to break away from the ATP’s control.
53
Thus, Djokovic, the famous Serbian and then-number one player in the
bourne-australian-open-reilly-opelka-393090d765294541f1750bf93a92f40a [https://
perma.cc/7S6L-63PJ].
45. See Merlisa Lawrence Corbett, Why Is American Tennis Dying?, B
LEACHER
R
EP
.
(Nov. 21, 2013), https://bleacherreport.com/articles/1857664-why-is-american-tennis-dying
[https://perma.cc/YLA7-NHZ2].
46. Popp, Miller & Hambrick, supra note 38, at 5.
47. See Wine, supra note 44.
48. See Collective Bargaining Agreements in Sports Leagues, J
USTIA
, https://
www.justia.com/sports-law/collective-bargaining-agreements-in-sports-leagues [https://
perma.cc/CF5B-DH8T].
49. See About PTPA: Our Origin Story, PTPA, https://ptpaplayers.com/about [https://
perma.cc/4ZGG-SEZ6].
50. See id.
51. Steinberger, supra note 8.
52. See id.
53. See id.
2022] Working Toward Break Point 951
world,
54
and Pospisil, a Canadian doubles star and former top twenty-five
singles player,
55
teamed up during the COVID-19 lockdown in 2020 to
create a new players’ association.
56
At the U.S. Open in August 2020,
Djokovic and Pospisil announced the formation of the Professional Ten-
nis Players Association, or the PTPA.
57
Though it does not refer to itself
as a union, the PTPA was officially founded in 2021 as a nonprofit corpo-
ration in Canada.
58
B. A B
RIEF
H
ISTORY OF
U.S. L
ABOR
L
AW AND
W
ORKER
C
LASSIFICATION
Worker classifications held little importance before the onset of the In-
dustrial Revolution, which brought with it new issues in labor and em-
ployment law.
59
Before the enactment of the National Labor Relations
Act (NLRA) in 1935 and the Fair Labor Standards Act (FLSA) in 1938,
the only legal difference between independent contractors and employees
existed in tort law for purposes of respondeat superior liability in
master–servant relationships.
60
At the beginning of the twentieth century,
the purpose of differentiating between different classes of workers
evolved from holding masters accountable for the torts of their servants
to protecting the rights of employees.
61
During the New Deal Era of the
1930s, Congress passed many laws aimed at protecting employees’ wages
and workplace conditions, but only workers who were classified as “em-
ployees” could enjoy the protections of these new laws.
62
1. National Labor Relations Act
In the aftermath of the Great Depression, the administration of Presi-
dent Franklin D. Roosevelt persistently pursued the goal of instituting a
national labor policy that was highly favorable to unions.
63
Congress
passed the National Labor Relations Act (NLRA) on July 5, 1935, and
officially made it a national policy to “encourage the practice of collective
54. See Novak Djokovic: Rankings History, ATP T
OUR
, https://www.atptour.com/en/
players/novak-djokovic/d643/rankings-history [https://perma.cc/9M86-PBTL].
55. See Matt Rybaltowski, Novak Djokovic, Vasek Pospisil-Led PTPA Lauds New
U.S. Open Purse Structure But Calls for More Reforms, F
ORBES
(Sept. 1, 2021, 1:54 AM),
https://www.forbes.com/sites/mattrybaltowski/2021/09/01/novak-djokovic-vasek-pospisil-
led-ptpa-lauds-new-us-open-purse-structure-but-calls-for-more-reforms/?sh=3ec1ead77edb
[https://perma.cc/T82U-9R35].
56. See Steinberger, supra note 8.
57. Id.
58. PTPA, supra note 49.
59. See Stafford, supra note 17, at 1225.
60. See Henry H. Perritt, Jr., Should Some Independent Contractors Be Redefined as
“Employees” Under Labor Law?, 33 V
ILL
. L. R
EV
. 989, 1007 (1988); Richard R. Carlson,
Why the Law Still Can’t Tell an Employee When It Sees One and How It Ought to Stop
Trying, 22 B
ERKELEY
J. E
MP
. & L
AB
. L. 295, 315 (2001).
61. Stafford, supra note 17, at 1226.
62. See id. (citing Fair Labor Standards Act of 1938, Pub. L. No. 718, § 2(a), 52 Stat.
1060 (codified as amended at 29 U.S.C. § 202(a) (2012))).
63. C
HARLES
B. C
RAVER
, M
ARION
G. C
RAIN
& G
RANT
M. H
AYDEN
, L
ABOR
R
ELA-
TIONS
L
AW
14 (14th ed. 2021).
952 SMU LAW REVIEW [Vol. 75
bargaining and full freedom of worker self-organization” in order to ad-
vance the “free flow of interstate commerce.”
64
To administer and en-
force the NLRA, Congress created the National Labor Relations Board
(NLRB), consisting of three board members with the authority to adjudi-
cate representation disputes and penalize unfair labor practice viola-
tions.
65
The Supreme Court further legitimized the NLRA and NLRB in
the 1937 case of NLRB v. Jones & Laughlin Steel Corp., in which the
Court upheld the constitutionality of the NLRA and the NLRB’s power
to settle any labor disputes that affected interstate commerce.
66
The
Court stated that “[e]mployees have [a] clear . . . right to organize and
select their representatives for lawful purposes.”
67
2. Fair Labor Standards Act
Another very important development in labor law history occurred
with the enactment of the Fair Labor Standards Act (FLSA), signed into
law by President Roosevelt on June 25, 1938.
68
The three most important
provisions of the FLSA consisted of the minimum wage requirement,
overtime payment mandate, and ban on child labor.
69
In order to claim
the protections available under the FLSA, a worker must be “employed,”
and the FLSA defines “employ” as “to suffer or permit to work.”
70
Very
soon after the enactment of the FLSA, the Supreme Court upheld its
constitutionality in United States v. Darby.
71
In Darby, the Court consid-
ered whether the FLSA could validly regulate employment against a
challenge brought under the Commerce Clause and the Fifth and Tenth
Amendments.
72
The Court affirmatively stated that the FLSA is “suffi-
ciently definite to meet [the] constitutional demands” of the Commerce
Clause.
73
3. Development of the Main Legal Tests
Since workers must be considered employees to obtain the benefits of
the NLRA and FLSA, the test used to distinguish them is vital. There are
three main tests courts use when determining whether a worker is an em-
ployee or an independent contractor: (1) the right to control test, (2) the
economic realities test, and (3) the ABC test.
In the nineteenth and very early twentieth centuries, the right to con-
trol test, also called the common law agency test, was the first test estab-
64. Id. at 15.
65. See id.
66. See id.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).
67. Jones & Laughlin Steel, 301 U.S. at 33.
68. See Richard Smith, Comment, The Perfect Play: Why the Fair Labor Standards Act
Applies to Division I Men’s Basketball and Football Players, 67 C
ATH
. U. L. R
EV
. 549,
551–52 (2018).
69. See id. at 551 (citing 29 U.S.C. §§ 206–07, 12 (2012)).
70. Id. at 553 (quoting 29 U.S.C. § 203(g)).
71. See id. at 552–53; United States v. Darby, 312 U.S. 100, 115 (1941).
72. Darby, 312 U.S. at 111–12.
73. Id. at 125.
2022] Working Toward Break Point 953
lished and used by judges to decide if a master should be held liable for
torts committed by a servant.
74
Using the right to control test, courts ana-
lyzed the amount of control the master or hiring party had over the ac-
tions of the servant or worker to determine the extent of the master’s
liability.
75
In 1944, the Supreme Court in NLRB v. Hearst Publications,
Inc. held that the right to control test was an inappropriate measure for
determining if a worker is an employee under the NLRA and gave a large
amount of discretion to the NLRB to decide the meaning of “em-
ployee.”
76
However, this decision proved to be highly unpopular among
the anti-union majority at the time, and Congress overturned it by pass-
ing the Taft–Hartley amendments to the NLRA in 1947.
77
The NLRA,
originally passed as the Wagner Act in 1935, defined “employee” very
broadly, and the Taft–Hartley amendments narrowed it by explicitly ex-
cluding independent contractors from the definition of an employee.
78
The economic realities test was first created and utilized by the Su-
preme Court in 1944 when the Court stated that if the word “employee”
was used ambiguously to define a worker, the Court would determine the
worker’s status by broadly analyzing “underlying economic facts rather
than technically and exclusively” classifying the worker as in earlier legal
tests.
79
When formulating the economic realities test, the Supreme Court
felt that Congress was attempting to shift focus to economic relationships
between employers and employees in enacting the NLRA.
80
Finally, the ABC test was first established in state law in 1935 by the
Maine Employment Security Law, a piece of legislation dealing with un-
employment compensation.
81
In the years following, many other states
adopted the ABC test and expanded its reach to cover disputes about
wages and hours, unemployment benefits, taxes, and more.
82
Impor-
tantly, the ABC test starts with the presumption that the worker is an
employee.
83
The test then uses three simple factors to determine if the
alleged employee is actually an independent contractor: (A) the worker’s
freedom from the hiring party’s control; (B) whether the work is outside
the hiring party’s usual course of business; and (C) whether the worker is
74. Markovits, supra note 14, at 228.
75. Id.
76. See NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 120–22, 134 (1944); Perritt, supra
note 60, at 1009.
77. Perritt, supra note 60, at 1009.
78. See Noah D. Zatz, Beyond Misclassification: Tackling the Independent Contractor
Problem Without Redefining Employment, 26 A.B.A. J. L
AB
. & E
MP
. L. 279, 280 & n.6
(2011).
79. Hearst Publ’ns, 322 U.S. at 129; see also Karen R. Harned, Georgine M. Kryda &
Elizabeth A. Milito, Creating a Workable Legal Standard for Defining an Independent Con-
tractor, 4 J. B
US
. E
NTREPRENEURSHIP
& L. 93, 101 (2010).
80. See Hearst Publ’ns, 322 U.S. at 129; Robert Sprague, Using the ABC Test to Clas-
sify Workers: End of the Platform-Based Business Model or Status Quo Ante?, 11 W
M
. &
M
ARY
B
US
. L. R
EV
. 733, 742–43 (2020).
81. Markovits, supra note 14, at 238.
82. Id.
83. Id.
954 SMU LAW REVIEW [Vol. 75
in an independent trade.
84
Unless a worker satisfies all three factors, he is
an employee and not an independent contractor.
85
III. CURRENT STATE OF TENNIS ORGANIZATIONS AND U.S.
LABOR LAWS
A. F
LAWED
S
TRUCTURES OF
P
ROFESSIONAL
T
ENNIS
O
RGANIZATIONS
Today, the Association of Tennis Professionals (ATP) and the Interna-
tional Tennis Federation (ITF) are the two main governing bodies of
men’s professional tennis.
86
The ITF is the general governing authority
for the sport of tennis across the world.
87
The ITF administers the official
rules of the sport and manages the four Grand Slam tournaments—the
Australian Open, Wimbledon, the French Open (also called Ro-
land–Garros),
88
and the U.S. Open.
89
The ATP functions almost like a
middleman between the tournaments and the players; therefore, tennis
players are not considered employees of any of these organizations but
are self-employed.
90
The ATP is not a union, as it once was, but is rather
a “hybrid organization” that consists of the ATP Board of Directors and
the Player Council, which serves only to advise the Board.
91
The Board of
Directors makes all official decisions and includes three player represent-
atives, three tournament representatives, and the ATP president.
92
Con-
sequently, under this structure, the three player representatives
consistently get out-voted by the combined four representatives for the
tournaments and the ATP.
93
B. C
OMPARING
C
URRENT
S
TRUCTURES OF
O
THER
P
ROFESSIONAL
S
PORTS
O
RGANIZATIONS
In professional team sports—like football, basketball, baseball, and
hockey—athletes are considered employees because their work is largely
under the control of a coach or manager.
94
In contrast, in individual
sports—like golf, boxing, wrestling, skating, and tennis—athletes are in-
84. Id.
85. Harned, Kryda & Milito, supra note 79, at 102; Markovits, supra note 14, at 238.
86. Raboin, supra note 23, at 212.
87. Id. at 214.
88. See Christopher Clarey, A Puzzler in Paris: French Open or Roland Garros?, N.Y.
T
IMES
(May 23, 2013), https://www.nytimes.com/2013/05/24/sports/tennis/a-puzzler-in-
paris-french-open-or-roland-garros.html [https://perma.cc/89BB-CUDC].
89. Raboin, supra note 23, at 217; Amy D. Gibson, The Association of Tennis Profes-
sionals: From Player Association to Governing Body, 10 J. A
PPLIED
B
US
. & E
CON
. 23, 25
(2010).
90. See Gibson, supra note 89, at 25.
91. See Salaman, supra note 24.
92. Peter Bodo, Rift Among Its Players Creating Uncertain Future for ATP Tour,
ESPN (Jan. 18, 2019, 9:14 AM), https://www.espn.com/tennis/story/_/id/25790932/austra-
lian-open-rift-players-creating-uncertain-future-atp-tour [https://perma.cc/V5MB-HQ4N].
93. See id.
94. E
MP
. D
EV
. D
EP
’
T
, S
TATE OF
C
AL
., T
OTAL AND
P
ARTIAL
U
NEMPLOYMENT
TPU
415.4: P
ROFESSIONAL
A
THLETE
(Jan. 18, 2022), http://www.edd.ca.gov/uibdg/To-
tal_and_Partial_Unemployment_TPU_4154.htm [https://perma.cc/3EH7-GZXN].
2022] Working Toward Break Point 955
dependent contractors because they generally have more freedom to
choose their own “style and manner of performing.”
95
In sports where
athletes are independent contractors, the governing bodies and organiza-
tions usually have no control over training or coaching and do not have
any authority over the results of competitions.
96
However, the U.S. De-
partment of Labor typically decides professional athletes’ classifications
on a “case-by-case basis” after reviewing the relationships between the
players and teams and weighing relevant factors.
97
Since the beginning of the twentieth century, 194 professional players’
associations and unions have been created, representing professional ath-
letes from thirty-five different sports and eighty-seven countries.
98
Addi-
tionally, there are fifty-three players’ associations across the world for
athletes who are independent contractors.
99
As representatives of profes-
sional athletes, players’ associations work out the terms of collective bar-
gaining agreements between the players and the leagues.
100
For example,
the National Basketball Players Association, the union that represents
men’s professional basketball players in North America,
101
has a collec-
tive bargaining agreement that guarantees players a set amount of time
off during their season and ensures they receive at least 50% of the
league’s revenue.
102
In recent years, there have been many developments in sports law and
labor law due to the changing classification of college athletes.
103
In 2014,
football players at Northwestern University attempted to form a labor
union in order to bargain with the university collectively.
104
The NLRB
held that the college football team could not form a union, but it did not
make a determination as to whether the football players were actually
employees of the university.
105
The NLRB simply stated that college ath-
letes could not unionize because such actions would not advance the pur-
poses of the National Labor Relations Act.
106
However, the NLRB never
explicitly stated that college athletes were not employees.
107
In fact, some
legal scholars believe the NLRB was implying in its decision that the
95. Id.
96. Id.
97. Collin R. Flake, Note, Getting to Deuce: Professional Tennis and the Need for Ex-
panding Coverage of Federal Antidiscrimination Laws, 16 T
EX
. R
EV
. E
NT
. & S
PORTS
L. 51,
62 (2014).
98. Braham Dabscheck, Why Djokovic Is Right to Say Tennis Players Need a Union,
C
ONVERSATION
(Jan. 21, 2018, 2:12 PM), https://theconversation.com/why-djokovic-is-
right-to-say-tennis-players-need-a-union-90321 [https://perma.cc/Z836-J94U].
99. Id.
100. See id.
101. See Overview & History, NBPA, https://nbpa.com/about [https://perma.cc/9AXZ-
FJ36].
102. Dabscheck, supra note 98.
103. See Smith, supra note 68, at 550.
104. Id.
105. Id.; see Nw. Univ., 362 N.L.R.B. 1350, 1350, 1352 (2015).
106. Smith, supra note 68, at 550.
107. See id.
956 SMU LAW REVIEW [Vol. 75
Northwestern football players were actually employees.
108
Labor scholars
have begun to notice a shift in courts’ views of athletes as employees and
predict that courts may eventually rule that college athletes are employ-
ees of their universities or the National Collegiate Athletic Association
(NCAA).
109
Surprisingly, professional wrestlers are in a very similar situation to
professional tennis players in that they too are misclassified as indepen-
dent contractors in the sports world.
110
Since the 1979 founding of World
Wrestling Entertainment (WWE), the premier entertainment organiza-
tion in professional wrestling, the wrestlers who work for the WWE have
been considered independent contractors even though they are in exclu-
sive contracts with the WWE and their performance is largely dictated by
the organization.
111
Scholars have argued that wrestlers should instead be
classified as employees of the WWE because, pursuant to a totality of the
circumstances analysis, professional wrestlers are under near-total control
of the WWE.
112
Wrestlers’ classification as independent contractors did
not come from any specific court decision but is just the “result of a lack
of any judicial involvement.”
113
In the same way, tennis players are
largely under the control of the ATP, and their misclassification as inde-
pendent contractors stems from courts using outmoded legal tests to
maintain the status quo.
Conversely, tennis players have very few similarities with tennis
umpires in the structure of their work, the amount of control the ATP or
USTA has over them, and their financial interests within the sport. The
2015 case of Meyer v. United States Tennis Association involved a class of
tennis umpires who sued the USTA under the FLSA, claiming they
worked overtime at the U.S. Open without getting paid.
114
The Second
Circuit used the economic realities test to decide whether the umpires
were independent contractors or employees.
115
The court affirmed the
district court’s decision that the umpires were independent contractors
because they were highly skilled, independent, and in control of their own
work of officiating tennis matches.
116
Additionally, the umpires had no
financial investments in the U.S. Open, could decide when and how long
they wanted to work, and were allowed to officiate for other tennis as-
sociations.
117
However, since the economic realities test dates back to
108. See, e.g., Roberto L. Corrada, College Athletes in Revenue-Generating Sports as
Employees: A Look into the Alt-Labor Future, 95 C
HI
.-K
ENT
L. R
EV
. 187, 195 (2020).
109. See Sam C. Ehrlich, “But They’re Already Paid”: Payments In-Kind, College Ath-
letes, and the FLSA, 123 W. V
A
. L. R
EV
. 1, 7–12 (2020).
110. See Michael Conklin & Julia Goebel, Wrestling with Employment Classifications:
Are WWE Wrestlers Independent Contractors?, 70 L
AB
. L.J. 165, 168–69 (2019).
111. See id. at 165–67 (explaining that the WWE has final say on the wrestlers’ attire
and props, creative storylines, and even the “duration and end result” of their matches).
112. See id. at 168.
113. Id.
114. Meyer v. U.S. Tennis Ass’n, 607 F. App’x 121, 121 (2d Cir. 2015).
115. Id.
116. Id. at 123.
117. Id.
2022] Working Toward Break Point 957
1944—a time when the landscape of labor relations within the United
States looked much different than it does today
118
—it is likely outdated
and should be replaced by a more modern legal test.
C. T
ODAY
’
S
F
RAGMENTED
L
EGAL
D
EFINITIONS OF
I
NDEPENDENT
C
ONTRACTORS AND
E
MPLOYEES
Under the Fair Labor Standards Act, an employee is broadly defined as
“any individual employed by an employer”
119
—a definition that excludes
independent contractors.
120
Most employers prefer their workers to be
classified as independent contractors for three main reasons.
121
Firstly,
employers do not have to furnish independent contractors with employee
benefits such as health insurance and pensions.
122
Secondly, independent
contractor status means that the workers cannot unionize—a limitation
that employers almost always prefer.
123
Finally, employers can sidestep
many state and federal laws regulating labor standards if their workers
are not employees.
124
For these reasons, it is crucial to use the correct legal test to determine
if workers are employees so as to not deprive them of their rights. In
addition, the U.S. Department of Labor has stated that “[e]mployee mis-
classification generates substantial losses to the federal government and
state governments” through the loss of tax revenues, unemployment in-
surance, and workers’ compensation funds.
125
For instance, the state of
California audited certain employers and managed to recoup $163 million
in back taxes and fines that all came from independent contractor
misclassifications.
126
There are three main tests used across the United States to decide
whether a worker is an employee or an independent contractor: the right
to control test, the economic realities test, and the ABC test.
1. The Right to Control Test
The right to control test defines an employee as “someone who per-
forms services for another person” and who is under that person’s control
in performing such services.
127
The test employs a number of factors that
118. See Harned, Kryda & Milito, supra note 79, at 101.
119. 29 U.S.C. § 203(e)(1).
120. J
ON
O. S
HIMABUKURO
, C
ONG
. R
SCH
. S
ERV
., R46765, W
ORKER
C
LASSIFICATION
:
E
MPLOYEE
S
TATUS
U
NDER THE
N
ATIONAL
L
ABOR
R
ELATIONS
A
CT
,
THE
F
AIR
L
ABOR
S
TANDARDS
A
CT
,
AND THE
ABC T
EST
6 (2021).
121. See Perritt, supra note 60, at 1001–02.
122. Id. at 1002.
123. Id.
124. Id.
125. S
HIMABUKURO
, supra note 120, at 1 (quoting Misclassification of Employees as
Independent Contractors, supra note 17).
126. Harned, Kryda & Milito, supra note 79, at 93.
127. Markovits, supra note 14, at 229 (citing R
ESTATEMENT
(S
ECOND
)
OF
A
GENCY
§ 220 (A
M
. L. I
NST
. 1958)).
958 SMU LAW REVIEW [Vol. 75
should be weighed to determine whether a worker is an employee.
128
Among others, these factors include: (1) how much control the employer
has over the details of the work; (2) whether the worker is working in a
separate job or business; (3) whether the work being performed is typi-
cally done under the employer’s supervision or by a specialist without
supervision; (4) how much skill the work requires; (5) whether the em-
ployer or the worker provides the necessary tools and the place of work;
(6) the length of time the worker is in service to the employer; (7)
whether the worker is paid based on time or based on the work done; (8)
whether the work is part of the employer’s regular business; (9) whether
the parties believe they are in an employer/employee relationship; and
(10) whether the principal is in business or not.
129
The NLRB typically
utilizes the right to control test by analyzing these ten factors, and no one
factor is decisive.
130
Compared to other legal tests, the right to control
test tends to give employers more leeway to classify their workers as in-
dependent contractors.
131
2. The Economic Realities Test
The second legal test, the economic realities test, bases its analysis
mostly on financial factors.
132
The U.S. Department of Labor uses the
economic realities test under the FLSA to evaluate employers’ compli-
ance in regard to the Act’s minimum wage and overtime working require-
ments.
133
The economic realities test looks at a number of factors to
classify workers: (1) the employer’s degree of control over the worker; (2)
the worker’s investment in the business, including the opportunity for
profit or loss; (3) how much knowledge and independence is required to
perform the work; (4) how permanent or long the worker’s relationship
with the employer is; and (5) whether the work is essential to the em-
ployer’s business.
134
Under the economic realities test, similar to the right to control test,
there is great potential for reasonable differences of opinion because of
the highly subjective judgments that come into play when weighing so
many factors.
135
For this reason, the economic realities test creates much
confusion in an area of law that is already unclear. In September 2020,
the U.S. Department of Labor proposed a new method for defining inde-
pendent contractors, stating that the economic realities test had become
too unclear and confusing with inconsistent application.
136
However, by
128. Id.
129. Id.
130. See S
HIMABUKURO
, supra note 120, at 2–3.
131. Harned, Kryda & Milito, supra note 79, at 100.
132. See id.
133. Id.
134. Meyer v. U.S. Tennis Ass’n, 607 F. App’x 121, 121 (2d Cir. 2015) (citing Brock v.
Superior Care, Inc., 840 F.2d 1054, 1058–59 (2d Cir. 1988)).
135. See Recent Legislation, California Adopts the ABC Test to Distinguish Between
Employees and Independent Contractors, 133 H
ARV
. L. R
EV
. 2435, 2435–36 (2020).
136. See S
HIMABUKURO
, supra note 120, at 8.
2022] Working Toward Break Point 959
March 2021, the Department of Labor still had not found a suitable stan-
dard to replace the economic realities test.
137
3. The ABC Test
The ABC test has officially been adopted by twenty states as well as
the District of Columbia.
138
In March 2021, the House of Representatives
passed legislation that would adopt the ABC test for use in accordance
with the NLRA instead of the right to control test.
139
Unlike the right to
control test and the economic realities test, the ABC test rests on the
initial presumption that the worker in question is an employee.
140
The
test then analyzes three factors to decide if the “presumptive employee”
is actually an independent contractor.
141
These three factors include: (A)
the degree of freedom the worker has from the hiring party’s oversight in
the course of their work; (B) whether the work performed is outside the
hiring party’s normal course of business; and (C) whether the worker is
dealing in an independent trade.
142
All three factors must satisfactorily
point to the worker being an independent contractor or the presumption
that the worker is an employee will stand.
143
One of the main advantages of the ABC test is that it is much simpler
than other legal tests; it uses three distinct and straightforward factors
rather than a laundry list of ten to thirteen ambiguous factors like the
right to control and economic realities tests.
144
Additionally, the ABC
test starts with the basic but important presumption that the worker is
already an employee.
145
This presumption offers workers more protec-
tion against employers who could try to work around the legal definitions
to ensure their workers are classified as independent contractors.
146
Overall, the ABC test presents a much more clear-cut and objective ap-
proach to classifying workers than all previously discussed legal tests.
a. California’s Adoption of the ABC Test
The current legal definitions of employee and independent contractor
are in flux due to recent developments in California.
147
In 2018, in the
case of Dynamex Operations West, Inc. v. Superior Court, the California
Supreme Court adopted the ABC test for wage and hour purposes, and
the California legislature codified the test into law in 2019 through the
enactment of Assembly Bill No. 5 (A.B. 5).
148
The main goals of A.B. 5
137. See id. at 9.
138. Id. at 8.
139. See id. at 1–2.
140. Markovits, supra note 14, at 238.
141. Id.
142. Id.
143. Id.
144. See Harned, Kryda & Milito, supra note 79, at 102.
145. See id.
146. See id.
147. See Markovits, supra note 14, at 226–27.
148. Id.; Dynamex Operations W., Inc. v. Super. Ct., 416 P.3d 1, 7 (Cal. 2018).
960 SMU LAW REVIEW [Vol. 75
were to give more certainty to workers and employers and to improve the
accuracy of legal tests in classifying workers.
149
However, critics of A.B. 5
still believe that its interpretive structure is ambiguous and that it does
not aid workers in securing more bargaining power for themselves.
150
The Dynamex Operations case arose out of the recent growth of new
technology companies, such as Uber, Lyft, and Postmates, and the “shar-
ing economy business model.”
151
Companies like Uber coin themselves
as “facilitative technology companies” and not as employers, so they clas-
sify their workers as independent contractors, not employees.
152
Many
workers believe this classification is incorrect and unfair to them, and
courts have faced difficulties when using outdated legal tests from the
nineteenth century in today’s technology-focused and quickly evolving
world.
153
b. Protecting the Right to Organize Act
The House of Representatives passed the Protecting the Right to Or-
ganize Act
154
(PRO Act) by a vote of 225 to 206 on March 9, 2021.
155
The
PRO Act aims to amend portions of the NLRA by furthering protections
for employees’ right to unionize.
156
In order to do this, the PRO Act
adopts the ABC test under the NLRA as the standard test across the
country.
157
The bill uses the ABC test because it is straightforward and
“provides a clear and fair method” for determining which workers are
employees and which are independent contractors.
158
However, critics of
the PRO Act contend that it would “undermine worker rights, ensnare
employers in unrelated labor disputes, disrupt the economy, and force
individual Americans to pay union dues regardless of their wishes.”
159
The bill now awaits a vote in the Senate where a filibuster could poten-
tially block it.
160
149. See Recent Legislation, supra note 135, at 2435.
150. See id. at 2435–36.
151. See Richard H. Gilliland III, Note, California and the Terrible, Horrible, No Good,
Very Bad Statutory Employee Classification Scheme, 79 W
ASH
. & L
EE
L. R
EV
. 899, 902–04,
915 (2022); Stafford, supra note 17, at 1224.
152. Stafford, supra note 17, at 1224.
153. See id. at 1224–25.
154. H.R. 842, 117th Cong. (2021).
155. Victoria Klein & Marc Sloane, A Union Wish List – The Protecting the Right to
Organize Act (PRO Act) of 2021, JD S
UPRA
(Mar. 25, 2021), https://www.jdsupra.com/
legalnews/a-union-wish-list-the-protecting-the-8227695 [https://perma.cc/J6JG-ULJ8].
156. See Stokes Wagner, Protecting the Right to Organize Act (PRO Act), JD S
UPRA
(Apr. 23, 2021), https://www.jdsupra.com/legalnews/protecting-the-right-to-organize-act-
2283786 [https://perma.cc/4KZX-A8KV].
157. See The PRO Act and the ABC Test: The NLRA, Employee Misclassification and
the PRO Act, AFL-CIO (Apr. 1, 2021), https://aflcio.org/card-stacks/pro-act-and-abc-test
[https://perma.cc/ABE7-EYE7]; Klein & Sloane, supra note 155.
158. Id.
159. Stop the PRO Act, U.S. C
HAMBER OF
C
OM
., https://www.uschamber.com/major-
initiative/stop-the-pro-act [https://perma.cc/DG4T-YMXW].
160. See Wagner, supra note 156.
2022] Working Toward Break Point 961
IV. HOW THE ABC TEST SOLVES ISSUES OF
MISCLASSIFICATION
A. T
ENNIS
P
LAYERS
’ M
ISCLASSIFICATION AS
I
NDEPENDENT
C
ONTRACTORS
Under the current legal tests, athletes like tennis players are improp-
erly classified as independent contractors when they should be considered
employees instead. Specifically, in the context of professional sports in
the United States, fixing the issue of tennis players’ misclassification as
independent contractors could attract more players to the sport and ex-
pose tennis to greater national attention. As it currently stands, many
lower-ranked players cannot make a livable wage and have no represen-
tation or bargaining power to change their plight.
161
For instance, Thai-
Son Kwiatkowski, a tennis player who won the NCAA men’s singles
championship and secured a spot in the U.S. Open, severely injured his
knee and had to pay for all of his rehabilitation treatments because he did
not belong to a sports league that would pay the bill.
162
After totaling all
of his expenses against his earnings from tennis, Kwiatkowski tweeted:
“Basically all I’m saying is . . . put your kids in team sports.”
163
Tennis’s popularity has declined dramatically in the United States in
the past few decades as sports like football and basketball are steadily
among the most popular in the country.
164
However, in countries in East-
ern Europe and Asia, tennis is gaining traction as a sport, which is re-
flected in the makeup of the rankings.
165
The most popular sports in the
United States—namely football, baseball, and basketball
166
—are team
sports in which athletes are classified as employees.
167
These athletes are
employees because they are under contracts with mutually agreed-upon
salaries, and “their team exercises control over their work.”
168
This em-
ployee status greatly benefits these athletes because the NLRA protects
employees’ rights to be members of unions that ensure a substantial sal-
ary and optimal scheduling.
169
These are important advantages that at-
161. See Steinberger, supra note 8.
162. See David Yaffe-Bellany, The Missed Business Opportunity That Is Pro Tennis,
B
LOOMBERG
B
USINESSWEEK
(Mar. 24, 2021, 3:00 AM), https://www.bloomberg.com/news/
features/2021-03-24/novak-djokovic-other-tennis-players-seek-to-reform-economics-of-the-
sport [https://perma.cc/TGD4-PTVN].
163. Id.; Thai-Son Kwiatkowski (@thaikwiatkowski), T
WITTER
(Mar. 11, 2019, 10:36
AM), https://twitter.com/thaikwiatkowski/status/1105130325322153985?s=20&t=OF4Y951
a17tibIQ8rvVJXw [https://perma.cc/R3KF-Y4LJ] (ellipsis in original).
164. See Wine, supra note 44.
165. See id.
166. Joseph Stromberg, 40 Maps and Charts That Explain Sports in America, V
OX
(Oct.
14, 2014, 8:00 AM), https://www.vox.com/2014/10/14/6951261/sports-maps-charts [https://
perma.cc/LTM6-QMNH].
167. Flake, supra note 97, at 62.
168. Id.
169. See N
AT
’
L
L
AB
. R
ELS
. B
D
., U.S. D
EP
’
TOF
L
AB
., E
MPLOYEE
R
IGHTS
U
NDER THE
N
ATIONAL
L
ABOR
R
ELATIONS
A
CT
, https://www.dol.gov/sites/dolgov/files/olms/regs/com-
pliance/eo_posters/employeerightsposter11x17_2019final.pdf [https://perma.cc/Q2KN-
JMPM]; Dabscheck, supra note 98.
962 SMU LAW REVIEW [Vol. 75
tract more young athletes and attention to these sports as sports like
tennis are declining in popularity within the United States.
Under the current structure of professional tennis, there seems to be
little possibility that any substantial change can occur because the players
and tournaments simply cannot operate as equal partners.
170
The tourna-
ments and players often have competing and conflicting interests with no
third party to bargain between them.
171
Currently, tennis players are the
lowest-paid professional athletes compared to other major sports leagues
and relative to the revenue each league generates.
172
Each of the four
Grand Slam tournaments brings in about $200 million in revenue every
year, but the players can only win about 10%–12% of that revenue as
prize money.
173
For instance, at the 2012 Australian Open, where the
players threatened to strike, the total revenue generated by the tourna-
ment was at least $250 million, while the total prize money pool was just
$26 million.
174
Comparatively, in professional basketball, the players re-
ceive around 50% of the league’s revenue as compensation.
175
Because
tennis players have no representation, they have no bargaining power
with the tournaments to earn a fairer share of the profits.
176
The tourna-
ment organizers essentially have free rein over the profits while the play-
ers are unable to hold them accountable.
177
1. No Protection Under Federal Antidiscrimination Laws
One of the most insidious issues caused by tennis players’ misclassifica-
tion as independent contractors is that they are not protected by federal
antidiscrimination laws.
178
Title VII of the Civil Rights Act, the Ameri-
cans with Disabilities Act, the Age Discrimination in Employment Act,
and the Equal Pay Act only protect employees, not independent contrac-
tors, from discrimination based on race, disability, age, sex, and
religion.
179
This vulnerability is clearly demonstrated in the case of Washington v.
United States Tennis Association, where an African American tennis
player, Mashiska Washington, claimed that the USTA denied him a
“wild-card entry” to play in the 1998 U.S. Open based on his race.
180
A
wild-card entry is an invitation from a tournament given to a selected
170. See Steinberger, supra note 8.
171. See id.; Dabscheck, supra note 98.
172. PTPA (@ptpaplayers), Compensation Percentage Revenue, I
NSTAGRAM
, https://
www.instagram.com/p/CXMyEp4gQBv [https://perma.cc/J695-H5VF].
173. Raboin, supra note 23, at 219.
174. Id.
175. See Dabscheck, supra note 98.
176. See Mike Shulman, “Something Worth Fighting For,” S
PORTS
N
ET
, https://
www.sportsnet.ca/tennis/longform/fight-death-inside-struggle-survive-pro-tennis [https://
perma.cc/L93W-TZSB].
177. See id.
178. See Flake, supra note 97, at 51.
179. Id. at 51–52.
180. Washington v. U.S. Tennis Ass’n, No. 99-CV-5148IJG, 2002 WL 1732801, at *1
(E.D.N.Y. July 22, 2002).
2022] Working Toward Break Point 963
player who would not normally have qualified to play in the tournament
based on his or her ranking.
181
In the Washington case, the court used the
“agency test,” also called the right to control test, to decide whether
Washington was an employee of the USTA.
182
The court held that be-
cause the USTA had almost no control over “the manner and means” of
how Washington did his job of playing tennis, he was not an employee of
the USTA and therefore had no right or standing to sue the USTA under
Title VII.
183
For tennis players whose livelihoods depend entirely on their participa-
tion in tournaments, unchecked discrimination can cost them hundreds of
thousands of dollars in potential earnings.
184
Players must participate in
tournaments in order to increase their rankings, so if lower-ranked play-
ers cannot get any wild cards to play in these larger tournaments, it will
be nearly impossible for them to build a tennis career.
185
Wild-card en-
tries into tournaments are given out to players solely at the discretion of
the tournament organizers, which leaves room for bias and discrimina-
tion.
186
As demonstrated by the court’s decision in Washington, a tourna-
ment could potentially discriminate against a player based on race and
face no legal repercussions simply because the player is an independent
contractor and thus cannot assert a claim against such a tournament.
In addition, female tennis players, as independent contractors, have
virtually no federal legal protections against sex discrimination.
187
This is
especially clear in view of the contrast between compensation for male
and female tennis players internationally. For example, in 2019, male
players in the ATP earned an average of $335,946 while female players in
the Women’s Tennis Association (WTA) made an average of $283,635.
188
Unlike many other sports with large, gender-based pay gaps, men’s and
women’s tennis are equal in popularity and bring in nearly the same
amount of revenue and sponsorships.
189
A study from 2009 showed that
the amount of prize money awarded to men and women was equal in just
seven out of twenty-one tournaments in which both men and women
played.
190
However, in the United States specifically, tennis is one of the
only sports where the average female player’s salary is higher than the
181. See Gui Hadlich, How Do Tennis Players Get Wildcards?, M
Y
T
ENNIS
HQ, https://
mytennishq.com/how-do-tennis-players-get-wildcards [https://perma.cc/U5FY-SAMM].
182. See Washington, 2002 WL 1732801, at *3.
183. See id.
184. See Flake, supra note 97, at 52.
185. See Karue Sell, How Do Tennis Rankings Work? (Easy Guide), M
Y
T
ENNIS
HQ,
https://mytennishq.com/how-do-tennis-players-earn-ranking-points [https://perma.cc/
Q4QY-XEGD]; Hadlich, supra note 181.
186. See Hadlich, supra note 181.
187. See Flake, supra note 97, at 53.
188. Male vs. Female Professional Sports Salary Comparison, A
DELPHI
U
NIV
. (May 20,
2021, 9:12 AM), https://online.adelphi.edu/articles/male-female-sports-salary [https://
perma.cc/G7YY-7FH5].
189. See Flake, supra note 97, at 53 n.24, 60.
190. Id. at 61.
964 SMU LAW REVIEW [Vol. 75
average male player’s salary.
191
This is likely because there have been
more high-ranked female American players than male American players
in recent years.
192
The Equal Pay Act, an amendment to the Fair Labor Standards Act,
prohibits pay discrimination on the basis of gender when employees’
work “requires equal skill, effort, and responsibility” and is “performed
under similar working conditions.”
193
However, the Equal Pay Act, like
Title VII, only applies to employees and excludes independent contrac-
tors from its protections.
194
Therefore, female tennis players have no pro-
tection under federal law against sex discrimination in employment
because of their independent contractor status.
2. Massive Pay Gaps Between Players
Yet another issue tennis players face as a result of their independent
contractor status is the extremely unequal distribution of money among
the players.
195
Players ranked in the top five in the world earn, on aver-
age, almost $8 million a year—a salary comparable to that of a CEO of a
large, multinational corporation.
196
However, players ranked outside the
top 300 earn less than $40,000 a year, and those ranked outside of the top
600 make less than minimum wage.
197
The issue is not that the top players are earning too much but rather
that the tournaments are not sharing enough of their revenue, and the
lower-ranked players have no way to change this without independent
representation.
198
Many lower-ranked players struggle to break even, and
there are not enough sanctioned ATP Tour events for all players to par-
ticipate and have equal opportunities to earn a salary.
199
For instance, for
players ranked from 101 to 200, there are 100 events offered per year,
while there are only 60 events per year for players ranked from 201 to
400.
200
For comparison, the men’s Professional Golfers’ Association
(PGA) Tour holds more than 600 events for higher-ranked golfers and
more than 200 events for lower-ranked golfers.
201
For tennis players, this
structure gives the lower-ranked players very few opportunities to earn a
salary through tournament prize money and little chance to improve their
191. Male vs. Female Professional Sports Salary Comparison, supra note 188.
192. See Peter Bodo, Why Are American Women More Successful in Tennis than U.S.
Men?, ESPN (Sept. 10, 2019), https://www.espn.com/tennis/story/_/id/27577134/why-ameri-
can-women-more-successful-tennis-us-men [https://perma.cc/D379-GXFD].
193. Flake, supra note 97, at 59 (quoting 29 U.S.C. § 206(d)(1)).
194. See id.
195. See Raboin, supra note 23, at 220.
196. See Gui Hadlich, How Much Do Tennis Players Make? – The Ugly Truth, M
Y
T
ENNIS
HQ, https://mytennishq.com/how-much-do-tennis-players-make-the-ugly-truth
[https://perma.cc/2LRE-LF54].
197. See id.
198. See Steinberger, supra note 8.
199. See PTPA (@ptpaplayers), Annual $ Breakdown, I
NSTAGRAM
(Dec. 23, 2021),
https://www.instagram.com/p/CX1qVTKPGwt/ [https://perma.cc/4FT3-QKT8].
200. See id.
201. See id.
2022] Working Toward Break Point 965
rankings by playing in more events.
202
While big names like Federer and Nadal bring in more publicity—and
therefore more money—to the sport of tennis, the lower-ranked players
make the continuation of the sport possible.
203
The top players must have
other players to compete against in the beginning rounds, and upsets in
tournaments make for some of the most exciting matches.
204
The sport
simply could not survive with just the top ten players competing.
3. Tennis Players Are Employees Under the ABC Test
If the worker status of tennis players was analyzed under the ABC test
instead of the outdated right to control test as applied in the Washington
racial discrimination case,
205
courts would find that tennis players are ac-
tually employees of their governing organizations. Under the ABC test,
tennis players are presumed to be employees and will continue to be pre-
sumptive employees unless all three factors—A, B, and C—are satis-
fied.
206
Tennis players satisfy factor A because they are not “free from
the control and direction” of organizations like the ATP in conducting
their work.
207
The ATP sets the schedules, locations, and sizes for tourna-
ments; administers the official rules for all men’s players; and requires
players to attend promotional events and press conferences “as repre-
sentatives of the sport and the ATP.”
208
Factor B also supports the notion
that tennis players are employees because they do not engage in work
that is outside the ATP’s usual course of business—in fact, men’s tennis is
the ATP’s only business.
209
Finally, under factor C, if the relationship be-
tween the ATP and an individual player was terminated, the player would
not be able to engage in the work of a professional tennis player any-
more.
210
In order to compete in professional tennis, players must play in
tournaments owned and operated by the ATP so they can acquire rank-
ing points.
211
In contrast to the ABC test, the right to control test produces an incor-
rect classification of tennis players because it focuses too heavily on the
hiring party’s degree of control over the worker while ignoring other rele-
vant factors.
212
The right to control test is based on an antiquated view of
employment involving early twentieth-century masters and their ser-
202. See id.
203. See Raboin, supra note 23, at 222 & n.109.
204. Id. at 222.
205. See Washington v. U.S. Tennis Ass’n, No. 99-CV-5148IJG, 2002 WL 1732801, at *3
(E.D.N.Y. July 22, 2002).
206. See Sprague, supra note 80, at 749.
207. See id.
208. See Gibson, supra note 89, at 27–28.
209. See Sprague, supra note 80, at 749; About, ATP T
OUR
, https://www.atptour.com/
en/corporate/about [https://perma.cc/5JQP-GWZS].
210. See Sprague, supra note 80, at 757.
211. See Sell, supra note 185.
212. See Sprague, supra note 80, at 741 & n.26.
966 SMU LAW REVIEW [Vol. 75
vants.
213
Under the right to control test, tennis players are deemed inde-
pendent contractors because neither the ATP nor the USTA necessarily
has control over “the manner and means by which” the athletes play ten-
nis.
214
Yet, under this same standard, it is arguable that no professional
athletes would qualify as employees because no sports league has the de-
gree of control to determine the full outcomes of their players’ work.
The economic realities test shifts the focus from the hiring party’s con-
trol over the worker to the worker’s financial investment in the perform-
ance of their job.
215
When applied to professional tennis players, the
economic realities test likely classifies tennis players as independent con-
tractors. For instance, under some of the test’s factors, tennis players do
not have a large investment in the business of the ATP other than their
own potential earnings, and an individual player is not necessarily essen-
tial to the continuation of the ATP’s economic success.
216
However, the
economic realities test is no longer a useful legal standard because it
places too much weight on the economic relationship between the em-
ployer and employee. The Supreme Court has criticized the economic re-
alities test by stating that its use has set “feeble precedents for unmooring
the term [employee] from the common law.”
217
Even the U.S. Depart-
ment of Labor has noted the inadequacies of the test and is currently
seeking to find a replacement for it.
218
The ABC test presents the best
balance of three simple factors that adequately measure proper employ-
ment classifications. Under the ABC test, it is clear that tennis players
and other athletes in individualized sports are employees and not inde-
pendent contractors.
4. The ATP as an Employer
The ATP functions very similarly to other professional sports leagues
in which the athletes are considered employees.
219
In the case of Deut-
scher Tennis Bund v. ATP Tour, Inc., German and Qatari tennis organi-
zations sued the ATP for antitrust violations of the Sherman Act when
the ATP downgraded one of its own tennis tournaments in Hamburg,
Germany from a 1000-level Masters event to a 500-level event.
220
There
are three levels of ATP Tour-run tournaments: ATP Tour 250, ATP Tour
213. See Jennifer Pinsof, Note, A New Take on an Old Problem: Employee Misclassifi-
cation in the Modern Gig-Economy, 22 M
ICH
. T
ELECOMMS
. & T
ECH
. L. R
EV
. 341, 348
(2016).
214. See Stafford, supra note 17, at 1229 (quoting Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 323 (1992)); Washington v. U.S. Tennis Ass’n, No. 99-CV-5148IJG, 2002 WL
1732801, at *3 (E.D.N.Y. July 22, 2002).
215. See M
ICHAEL
S. H
ORNE
, T
HOMAS
S. W
ILLIAMSON
, J
R
. & A
NTHONY
H
ERMAN
, T
HE
C
ONTINGENT
W
ORKFORCE
: B
USINESS AND
L
EGAL
S
TRATEGIES
§ 4.03, at 4-9 (2005).
216. See Meyer v. U.S. Tennis Ass’n, 607 F. App’x 121, 121 (2d Cir. 2015).
217. Darden, 503 U.S. at 324; Sprague, supra note 80, at 743.
218. See S
HIMABUKURO
, supra note 120, at 8–9; see supra text accompanying notes
136–137.
219. See Gibson, supra note 89, at 24–25, 28.
220. Id. at 24; see Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 824–26 (3d
Cir. 2010).
2022] Working Toward Break Point 967
500, and ATP Tour Masters 1000.
221
When the Hamburg tournament was
downgraded from a 1000- to a 500-level event, top players were no longer
required to participate in it, and players would earn fewer points toward
their overall rankings for playing.
222
The Third Circuit Court of Appeals
affirmed the jury verdict returned in favor of the ATP.
223
The jury found
that the ATP was a “single business entity,” which effectively gave the
ATP total control over players’ rankings, tournament administration, and
the rights to media and merchandising.
224
In this case, the court treated
the ATP as having the same legal status as other professional sports
teams by allowing it to have complete control over men’s professional
tennis without violating antitrust laws.
225
Therefore, the ATP could be
considered an employer just like any other professional sports league.
B. A
RGUMENT FOR THE
U
NIFORM
A
DOPTION OF THE
ABC T
EST
The number of independent contractors in the workforce, along with
their impact on the national economy, is growing at a meteoric rate.
226
Thus, it is extremely crucial to have the correct legal test in place to en-
sure the proper classification of workers as either employees or indepen-
dent contractors. Under the current system used across the United States
today, many workers are misclassified due to a “piecemeal” approach us-
ing several different legal tests with numerous, unclear factors.
227
This
leaves both employers and workers in a state of uncertainty over how the
workers will be classified, as vastly different laws govern employees and
independent contractors.
228
In 2015, the New Jersey Supreme Court held
that the ABC test is the best legal approach for determining employee
status.
229
The court found that the ABC test offered the most predictable
result, while the other tests, like the economic realities test, would “yield
a different result from case to case.”
230
An important strength of the
ABC test is that it uses three concise factors that must all be met, while
other tests use an ever-changing number of non-dispositive factors.
231
Uniform adoption of the ABC test across all levels and branches of
government would best serve the interests of both employers and work-
ers. Because of inconsistent applications of the legal tests and subjective
weighing of numerous factors, courts and labor officials all too frequently
make conclusions that conflict with one another.
232
This is in part because
221. Sell, supra note 185.
222. Gibson, supra note 89, at 24.
223. See Deutscher Tennis Bund, 610 F.3d at 841.
224. See id. at 828, 841; Gibson, supra note 89, at 25.
225. See Gibson, supra note 89, at 29.
226. See Harned, Kryda & Milito, supra note 79, at 96.
227. See id. at 99–100.
228. See id.
229. See S
HIMABUKURO
, supra note 120, at 11; Hargrove v. Sleepy’s, LLC, 106 A.3d
449, 465 (N.J. 2015).
230. See Hargrove, 106 A.3d at 464.
231. See Sprague, supra note 80, at 750, 760.
232. See Stafford, supra note 17, at 1232.
968 SMU LAW REVIEW [Vol. 75
most disputes regarding worker classifications are decided under state
law, and larger companies with locations in multiple states must often
classify their workers based on the workers’ location.
233
1. Potential Issues with Tennis Unionization
The greatest advantage tennis players would have as employees under
the ABC test is the ability to form the Professional Tennis Players Associ-
ation into an official labor union. However, thus far, the formation of the
PTPA has not come without issues. For instance, women were initially
excluded in the creation of the PTPA, leading many top players, like Brit-
ish champion Andy Murray, to be skeptical of how willing the PTPA ac-
tually was to represent all players.
234
The PTPA claims to represent both
male and female players in singles and doubles but still largely lacks sup-
port from the top female players.
235
Additionally, the PTPA lacks support from some of the highest-earning
players and biggest names in tennis, who do not feel they should be obli-
gated to share their earnings.
236
At the beginning of the COVID-19 pan-
demic, there was an effort to start a relief fund for low-earning players
who had no source of income while professional tennis tours were on
pause during the lockdown.
237
Dominic Thiem, an Austrian player
ranked number three in the world at the time, expressed a sentiment that
was shared by many top players in regard to donating to such a relief
fund: the top players had to work their way up the rankings too, and
many felt that the lower-ranked players were not ranked higher because
they did not work as hard, and thus did not deserve other players’ hard-
earned money.
238
While Thiem’s view is quite harsh, it signals a potential
roadblock for the PTPA if it cannot get support from the sport’s highest-
earning players. It will be difficult for the PTPA to gain traction and influ-
ence without the help of the biggest names in tennis (other than
Djokovic, who is oftentimes viewed as a controversial figure).
239
The suc-
cess of the PTPA depends on the players’ willingness to compromise in
order to benefit the sport overall.
2. Potential Issues with Using the ABC Test
While the ABC test has many advantages over other legal tests, some
of its critics point to the test’s potential to discourage business owners
from contracting out services or hiring freelance workers because they
233. Id.
234. See Press, supra note 13.
235. See Steinberger, supra note 8.
236. See id.
237. See id.
238. See Louisa Thomas, The Fractured World of Tennis amid a Prolonged Pandemic,
N
EW
Y
ORKER
(Aug. 13, 2020), https://www.newyorker.com/sports/sporting-scene/the-frac-
tured-world-of-tennis-amid-a-prolonged-pandemic [https://perma.cc/A4CQ-XAW7].
239. See, e.g., Ramzy, supra note 4.
2022] Working Toward Break Point 969
might have to consider such workers their employees.
240
This could
greatly disrupt the livelihoods of freelance workers who rely on their in-
dependent contractor status to easily conduct business without the en-
cumbrances stemming from an employee–employer relationship. For
example, after the passage of A.B. 5 in California adopting the ABC test,
New York-based Vox Media stopped working with freelance journalists
in California altogether over concerns about compliance with the new
employee standards.
241
Uniform adoption of the ABC test across the
country would solve such confusion for employers who have workers in
different states. The current patchwork of labor laws across the states
makes it too difficult for employers to navigate compliance with inconsis-
tent laws. Under the ABC test, freelance workers would remain indepen-
dent contractors as they should rightfully be.
In addition, critics are concerned that the PRO Act and nationwide
adoption of the ABC test would strip away state right-to-work laws.
242
They argue that freelance workers, potentially classified as employees
under the ABC test, would be forced into joining unions, paying union
fees, and abiding by the wage and hour restrictions in union contracts.
243
However, adopting the ABC test would not alter “federal or state mini-
mum wage laws, overtime laws, or other worker protection laws.”
244
The
ABC test simply allows more workers to be classified as employees. As
employees, workers have more protections and rights, such as the right to
form or join a union if they desire, but they would not be required to join
a union against their will.
245
There are several important policy implications that come with poten-
tially expanding the statutory definition of an employee to include a
larger number of independent contractors. In an extreme example, if in-
dependent contractor status was totally eliminated and all workers were
classified as employees, anyone who purchased any service may have to
bargain with labor representatives and would be subject to government
regulation under labor standards laws.
246
However, the ABC test would
not cause all workers to be classified as employees. The test properly
sorts workers into their appropriate classifications. True independent con-
tractors do need to be excluded from an expanded definition of “em-
240. See S
HIMABUKURO
, supra note 120, at 10.
241. See Jodi Price, The AB5 Law and How Freelancers Are Affected, F
IVERR
W
ORK-
SPACE
(Nov. 25, 2020), https://workspace.fiverr.com/blog/the-ab5-law-and-how-freelancers-
are-affected [https://perma.cc/9MVF-7A2X].
242. See Sean P. Redmond, The PRO Act’s Attack on Independent Contracting, U.S.
C
HAMBER OF
C
OM
. (Mar. 19, 2021), https://www.uschamber.com/workforce/independent-
contractors/the-pro-act-s-attack-independent-contracting [https://perma.cc/FG7G-QV4Z].
243. See id.
244. The PRO Act and the ABC Test: Does the PRO Act Create New Requirements for
Employers Under Other Laws?, AFL-CIO (Apr. 1, 2021), https://aflcio.org/card-stacks/pro-
act-and-abc-test [https://perma.cc/AB33-UCE5].
245. The PRO Act and the ABC Test: Does the ABC Test Require Workers to Join a
Union?, AFL-CIO (Apr. 1, 2021), https://aflcio.org/card-stacks/pro-act-and-abc-test [https:/
/perma.cc/3JL5-QW42].
246. See Perritt, supra note 60, at 1023–24.
970 SMU LAW REVIEW [Vol. 75
ployee.”
247
Some types of workers, like freelance workers, are clearly not
meant to be employees and thus should remain independent contractors.
The ABC test would yield the proper classifications.
Finally, there are a few alternatives to redefining “employee” to deal
with the issue of independent contractor misclassification. Such proposals
include changing the entire concept of employment to fit into a wholly
new category of a “dependent contractor” or adding another factor, such
as “economic dependence,” to the balancing tests used by courts in deter-
mining whether a worker is an employee.
248
However, the ABC test of-
fers the most straightforward solution to the classification issue because it
takes the proper factors into account and is easy to implement.
3. The ABC Test Is the Best Fit for Both Employers and Workers
Out of all the potential tests, the ABC test balances the factors in-
volved in determining employment status most evenly and consistently.
In contrast with the right to control test, the ABC test takes much of the
focus away from the element of control that is often given too much
weight.
249
Similarly, when compared to the economic realities test, the
ABC test results in a better analysis of workers’ economic relationships.
Even though it was first used in 1935
250
—nine years before the creation
of the economic realities test—the ABC test is more adaptable and can
be applied to modern employment arrangements effectively.
251
This is be-
cause the ABC test is based on three simple factors, not on outmoded
ideas of employment.
252
With the impact of new technologies, more flexible work schedules,
and the increased ability to work from home, the concept of employment
has changed drastically within just the past few years. In an evolving
economy, it is crucial that the appropriate legal standards are in place to
classify workers. Uniform adoption of the ABC test is most beneficial to
employers because it gives them greater predictability with respect to
how courts and labor officials across the country will classify their work-
ers.
253
Additionally, the ABC test’s three required factors make it much
easier for employers to determine what kind of worker they are hiring.
254
Finally, the ABC test offers more protection to workers by beginning
with the presumption that the worker is already an employee.
255
This can
reduce much of the harm caused by independent contractor misclassifica-
tions. Workers can also benefit from having more certainty if the ABC
247. See id. at 1023.
248. See Zatz, supra note 78, at 284.
249. See Sprague, supra note 80, at 767.
250. Markovits, supra note 14, at 238.
251. See Pinsof, supra note 213, at 370–71.
252. See id.
253. See id. at 351, 367–69.
254. See id. at 368; Markovits, supra note 14, at 247.
255. See Markovits, supra note 14, at 248.
2022] Working Toward Break Point 971
test is consistently applied, as they can be sure of their rights.
256
Overall,
the uniform application of the ABC test presents a very simple solution
to the complex problem of worker misclassification, all while being
equally advantageous and fair to both the employers and workers
involved.
V. CONCLUSION
Congress’s proposed legislation called the Protecting the Right to Or-
ganize Act of 2021 would officially adopt the ABC test for federal use
under the NLRA.
257
The main purpose of the bill is to make it more
difficult for employers to purposefully misclassify workers as independent
contractors in order to deny them employee rights, including the right to
unionize.
258
This bill is definitely a step in the right direction toward a
more uniform and fair application of worker classifications across the
country.
The state of men’s professional tennis provides a relevant case study
for demonstrating the issue this bill is trying to fix because it reflects the
flaws in the current legal frameworks used to classify workers in the
United States. Just as tennis players are misclassified as independent con-
tractors, countless other workers are being denied their proper rights be-
cause of flawed legal tests. Like all independent contractors in the United
States, tennis players are unable to unionize because of their legal sta-
tus,
259
and without the benefit of such representation, players are mas-
sively underpaid and overworked by the governing leagues of tennis. In
addition, tennis players cannot claim federal legal protections against em-
ployment discrimination because they are not considered employees. As
a result, the sport of tennis has seen a striking decline in popularity in the
United States in recent years. Tennis players need a legitimate union to
keep up with the growth of other unionized sports like football and
basketball.
To decide whether a worker is an independent contractor or an em-
ployee, courts have used three prominent legal tests: the right to control
test, the economic realities test, and the ABC test. However, these tests
have been used inconsistently, causing confusion among employers and
workers alike. Both the right to control test and the economic realities
test use a large number of ambiguous and non-dispositive factors to de-
termine worker status. These tests are also based on outdated views and
outdated employment arrangements. The ABC test begins with the pre-
sumption that the worker is an employee and then analyzes three clear
256. See id. at 248–49.
257. S
HIMABUKURO
, supra note 120, at 12; see H.R. 842, 117th Cong. (2021).
258. See S
HIMABUKURO
, supra note 120, at 12.
259. See David J. Pryzbylski, New Test for a New Year? Labor Board Reconsiders Inde-
pendent Contractor Status, B
ARNES
& T
HORNBURG
LLP (Jan. 4, 2022), https://btlaw.com/
en/my-briefcase/downloadpdf?page=022c700b-031f-499a-bd39-d85c9e0666d6&p=1 [https://
perma.cc/X527-ZVTP].
972 SMU LAW REVIEW [Vol. 75
factors that could rebut that presumption. This test would function best in
the modern economy.
The ABC test has many advantages over other legal approaches in
tackling the independent contractor problem. It is a more balanced test
that repeatedly leads to accurate results. Thus, the ABC test should be
adopted by state and federal governments and courts to apply equally to
all workers across the country. Because there is such a large number of
independent contractors in the workforce, it is critical to ensure their cor-
rect classification. The ABC test provides more certainty that workers
who should be employees, like professional tennis players, will receive
the proper classification and the proper rights. Uniform adoption of the
ABC test is the best way to solve the independent contractor classifica-
tion problem that affects so many workers and employers in the U.S.
economy.
