Dustin Johnson and Other Pro Golfers Need a Union

The PGA Tour's Drug Testing Policy and Collective Bargaining Rights of Pro Golfers

Somehow it's okay for the PGA Tour to drug test the golfers on the tour and to discipline them if they fail the test. Dustin Johnson just got suspended for 6 months for using cocaine as a result of a drug testing policy implemented by the PGA Tour in 2007. Mandatory drug testing policies are topics of collective bargaining between employers and employees in jobs where the workers are organized into a labor organization. So why don't Pro Golfers organize into a union to collectively bargain over the terms and conditions of their employment?

Independent Contractor vs. Employee

One reason may be that they are considered independent contractors and not employees and the National Labor Relations Act only applies to employees. So are the players really independent contractors? The IRS has a form to help in the determination: Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding (http://www.irs.gov/pub/irs-pdf/p1779.pdf).

Factors that militate against the Pro Golfers being independent contractors include: (1) there is a minimum number of tournaments Pro Golfers have to play each year; (2) Pro Golfers have to get tour permission to play in conflicting events; (3) Pro Golfers have to pay a rights fee to the tour when they appear on TV in a non-tour event; and (4) Pro Golfers had to agree not to sue the tour over the final results of a failed drug test.

Recreational Drugs vs. Performance Enhancing Drugs

Maybe the drug testing policy makes some sense with respect to performance enhancing drugs, but what competitive advantage does cocaine provide to a golfer? Many of you probably remember Vijay Singh and his brush with the deer antler spray that led to his attorney filing a motion in court, which stated that "In the world of private sporting organizations, an entity such as the Tour dominates over its members, administers the sport without any participation or real support of its members, and avoids the systemic counterbalances created when a collective bargaining agreement serves as a check and creates balance.” (http://www.golfchannel.com/news/rex-hoggard/it-may-be-time-pga-tour-players-unionize/). The PGA dropped the case against Vijay and his countersuit against them is likely going to proceed to trial after he recently obtained a favorable ruling in that lawsuit (http://espn.go.com/golf/story/_/id/10477941/vijay-singh-gets-key-ruling-lawsuit-vs-pga-tour). It turns out that deer antler spray doesn't even work.

Pro Golfers Deserve Representation

If the players are independent contractors, how are they to protect themselves? Who will negotiate a fair disciplinary process and drug testing policy? Pro Golfers need something in place to protect their rights and to ensure that the process is fair and a union just might be the answer.