Labor Antitrust

Antitrust in Labor Markets

May 27, 2025 | Ruth Glaeser and Steve Cernak

Authors: Ruth Glaeser and Steven Cernak

In her first major speech since taking the helm of the Justice Department’s Antitrust Division, Assistant Attorney General Gail Slater spotlighted a growing concern: the power imbalance in America’s labor markets. Speaking in late April, Slater emphasized that antitrust laws are not solely designed to protect consumers from monopolistic practices, but are also a critical tool for protecting workers, promoting wage growth, and ensuring fair working conditions through competitive labor markets.

Despite being historically overshadowed by consumer-facing antitrust actions, labor markets have always been integral to antitrust protection. Workers, like consumers, are deeply affected by competition—or the lack thereof. When companies conspire to fix wages or agree not to hire one another’s employees, workers are deprived of fair market opportunities. Antitrust law is fundamentally about maintaining competitive markets, including labor markets.

The DOJ’s Wins and Losses

In response to increasing concern over anti-competitive labor practices, attention to competition in labor markets re-emerged around 2016, when the DOJ and FTC released their Antitrust Guidance for Human Resource (HR) Professionals. Further, the agencies publicly announced they would begin criminally prosecuting certain no-poach and wage-fixing agreements between and among employers.

DOJ achieved a notable milestone in April 2025 when it secured its first-ever guilty verdict in a criminal labor-market antitrust case. In United States v. Eduardo Lopez, a federal jury convicted a former executive of a home healthcare staffing agency for conspiring with others to suppress wages paid to healthcare workers in the Las Vegas area. This verdict represents a landmark victory for the DOJ.

But this singular success comes after several setbacks, signaling that the legal framework around antitrust enforcement in labor markets remains contested.

For example, in United States v. Jindal, the DOJ’s first-ever wage-fixing criminal prosecution, a former healthcare staffing company owner and the company’s ex-clinical director were accused of conspiring with a competitor to lower wages for physical therapists and their assistants. Despite the gravity of the allegations, both defendants were acquitted of all charges.

United States v. Davita, Inc. involved the DOJ’s first no-poach agreement prosecution. In that case, Davita Inc. and its former CEO were charged with conspiring with other companies to restrict competition in the market for dialysis-center employees by implementing “no-poach” agreements, which allegedly prohibited companies from hiring each other’s employees. Both Davita and its CEO were acquitted on all charges.

In United States v. Manahe, four business managers of home health agencies faced charges for conspiring to form no-poach agreements and fix wages for home health aides. The defense successfully argued that the agreements had pro-competitive justifications and did not constitute “naked” restraints on trade, which are per se illegal under antitrust law. The defendants were ultimately acquitted, further complicating the DOJ’s efforts to define and enforce labor-based antitrust violations.

These mixed outcomes reveal the complexity of proving criminal liability in labor market antitrust cases.

Updated FTC and DOJ Antitrust Guides

In January 2025, the two agencies updated and replaced the earlier 2016 Guidelines. The 2025 update expanded their scope and emphasized that antitrust law applies to all business activities, not just to those directly affecting consumers. This shift further validated the idea that workers must be considered stakeholders in competitive markets who deserve the protection of the antitrust laws.

HR And Worker Responsibilities Under Antitrust Law

Both HR professionals and workers play a vital role in protecting themselves and the companies they work for from criminal antitrust violations. The 2025 Guidelines from the DOJ identify several types of activities and agreements that may constitute antitrust violations, including:

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New York Is Not Okay with Non-Competes

January 1, 2024 | Molly Donovan

Author: Molly Donovan

Update: In December 2023, New York Governor Kathy Hochul vetoed the legislature’s proposed prohibition against employee non-competes. The Governor indicated that her “top priority was to protect middle-class and low-wage earners, while allowing New York’s businesses to retain highly compensated talent.” Carve-outs to the bill for highly-compensated employees and executives were discussed, but no agreement as to an income cut-off could be reached. Senator Sean Ryan has said that he expects the legislation to be reintroduced in 2024.

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MMA & Monopsony: MMA Fighters Win Class Certification Bout in Employment Monopolization Case

September 27, 2023 | Luke Hasskamp and Molly Donovan

Authors: Luke Hasskamp & Molly Donovan

In yet another important labor-monopsony case, a federal court in Nevada has declared a win for MMA athletes fighting against their promoter’s alleged misuse of monopsony power in the market for acquiring fighters’ services. Class certification has been granted to MMA fighters accusing their promoter of locking them into exclusive contracts that deterred fighters’ mobility and suppressed their wages for fighting bouts. Cung Le v. Zuffa, LLC, No. 2:15-cv-01045-RFB-BNW, 2023 WL 5085064, 2023 U.S. Dist. LEXIS 138702 (D. Nev. Aug. 9, 2023).

The Facts. MMA is a combat sport—a mix of boxing, wrestling, karate and other forms of martial arts. A bout is a competition between MMA fighters in a timed round where a fighter can win by acquiring the most points or by a knockout or submission (the other fighter gives up due to “extreme pain”).

During the at-issue period (2010-2017), Zuffa (defendant) promoted MMA bouts—under the trade name Ultimate Fighting Championship.

During that time, Zuffa treated fighters as independent contractors and compensated them on a bout-by-bout basis: one payment to “show” (participate in a bout) and then another payment (typically in the same amount) to win. This method of compensation was common across all MMA fighters promoted by Zuffa except for a “very small” number of the best fighters who also may have received additional payments at times (e.g., a percentage of the revenues generated by a particular event). Fighters bore their own expenses for training and skills maintenance.

The contracts between Zuffa and fighters contained “exclusion clauses” that required athletes to fight only for Zuffa. These contracts also imposed additional clauses that gave Zuffa significant control over fighters, including (i) the exclusive ability to extend certain contracts automatically; (ii) the exclusive right to cut fighters; and (iii) the right to match a competing promoter’s offer at the expiration of a contract, essentially requiring the fighter to remain with Zuffa whenever Zuffa matched the competing offer.

The Proposed Bout Class. All persons who competed in live UFC-promoted MMA bouts in the United States from 2010 to 2017.

Predominance. Predominance has become the “main event” in antitrust class certification inquiries—the round where a plaintiff can win it or lose it all. To establish predominance, plaintiffs must show (i) conduct that violates the antitrust laws; (ii) that the conduct was commonly applied to the class; (iii) it led to common injury in the class; and (iv) measurable damages provable with evidence common to the class.

Illegal conduct. The class alleges a violation of Section 2 of the Sherman Act, i.e., that Zuffa sought to maintain its monopsony power in the relevant market through exclusionary conduct. In a lengthy analysis, the court held that plaintiffs showed that Zuffa enjoyed monopsony power in a relevant antitrust market—the market for elite professional MMA fighter services. An expert testified that, during the relevant time, Zuffa’s share was between 70 and 90% in the labor-input market. And this market also had significant barriers to entry, including Zuffa’s own “coercive” contracts that “artificially restricted” competitors’ access to fighter talent. As for exclusionary conduct, the court ruled that the required exclusivity and other oppressive contractual provisions (along with related “coercive” conduct by Zuffa) “locked up” fighters, restricting their mobility and suppressing their wages. The court also pointed to Zuffa’s history of horizontal acquisitions as further evidence of a willful intent to maintain market dominance.
Common application to the class. The court found that the relevant contractual provisions applied to all class members, as did Zuffa’s coercive conduct used “consistently” “to induce fighters into re-signing contracts or risk punishment.”
Common injury. Plaintiffs’ expert submitted a regression analysis to show that class members’ wages were artificially suppressed by Zuffa’s conduct. The court ruled that analysis was sufficiently reliable at the class certification stage to establish common injury—rejecting defendant’s “small” criticisms of specific variables and particular data decisions.
Finally, the court held that plaintiff’s expert presented a “coherent methodology for establishing class-wide damages that predominates over any individual damages analysis.”

Total Knockout? No. While the court certified that “bout class,” it declined to certify a separate “identity class” consisting of every fighter whose identity was “expropriated or exploited by the UFC” from 2010 to 2017. The court held that, unlike the bout class, plaintiffs had not presented sufficient expert analysis supporting a connection between the relevant exploitative conduct and suppressed compensation. The court also found it important that the merchandising rights were voluntary and non-exclusive and that fighters in the class varied in notoriety—a difference difficult to capture in an objectively-defined variable. Finally, the court said there was no evidence of an “internal pay structure” for identity rights that was consistently applied across the proposed class.

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