Days after Uber began selling stock, the National Labor Relations Board’s top lawyer gave the company a huge gift. In an advice memo, the general counsel’s office determined that Uber’s drivers . If drivers are legally determined to be employees, it would throw Uber’s entire business model into question by giving drivers, among other rights, the ability to collectively bargain for pay and working conditions.

While the memo itself is not a court ruling with legal authority, it’s yet another influential voice weighing in on a vitally important legal distinction for Uber and other gig economy companies like it.

But a ruling in the company’s favor would paradoxically expose the ride-hailing giant to a separate legal challenge, one that has gotten far less attention. It poses an even greater existential threat not only to Uber, but most if not all the gig economy businesses: price fixing.

“Uber is effectively trying to have it both ways,” says Sanjukta Paul, a law professor at Wayne State University who has been writing about the gig economy’s vulnerability to price fixing regulation for several years. “They’re setting a price for a product they say they don’t sell.”

This legal argument is deceptively simple, but to understand it requires laying a lot of groundwork, not just to understand the argument itself but why the American legal system has largely stopped paying attention to these kinds of antitrust concerns. It’s also important to break down why price-fixing is central to the employee/contractor distinction on which so many companies depend in the first place.

A warning upfront: this stuff gets confusing, sometimes intentionally so on the parts of companies that want to muddle the distinctions between workers and contractors, customers versus vendors, and other distinctions very important in the legal realm but rarely of interest to ordinary people. But understanding all this is key to grasping the nature of work in the internet age and how the law lags woefully behind.

of the Chamber of Commerce’s legal argument:

The chamber argued that by allowing drivers to bargain over their pay, which is based on fares received from passengers, the city would permit them to essentially fix prices in violation of federal antitrust law.

The case is still ongoing, but it’s worth thinking through the implications of the Chamber of Commerce’s—and by extension Uber’s—argument.

, because Uber sells drivers an exchange service to help them in turn find their customers, the riders.

This is a weird argument for a lot of reasons, but it accords with the company’s contention that —not a transportation service. By this logic, Uber’s product would not be the actual transportation of the person from A to B, but the use of this app to facilitate it.

Therefore, the price of Uber’s services would not be the $35 or whatever you pay for the ride, but Uber’s cut, the $8.75 (25 percent) the company takes for itself.

Today, many Uber and Lyft drivers in major cities across the country are striking to protest their…

When Paul walked me through this argument, this was the point I had my “aha” moment. In practice, the company sets the price for more than its own services. Uber determines the price for the ride itself, which it contends is a transaction between two separate entities.

In other words, there’s an argument to be made that Uber is doing the very price-fixing it says drivers can’t do; and the price it fixes is for a service it contends it doesn’t sell.

Presumably, Uber would argue in a court-like setting that’s perfectly fine, because it’s a single firm, whereas independent contractors are a collection of thousands of firms. But, Paul argues this is a distinction without a difference. The price, after all, is still being fixed.

When Jalopnik asked Uber if it has any comment on the potential legal challenge of price-fixing, an Uber spokesperson did not answer the question and instead sent the following statement: “Riders want a reliable and affordable way to get from A to B. Drivers want dependable earnings. Our pricing is designed to meet the needs of riders and drivers — so Uber can be the first choice for both.” Throughout Uber’s history, drivers have repeatedly claimed they find Uber’s payouts and .

To be fair, this is tricky—and shifting—legal territory. What we’re talking about here is different than what most people think about when they picture traditional price fixing or other cartel behavior, like a bunch of mob bosses or Fortune 500 executives gathering in a smoky back room.

, which overruled a 1968 case finding vertical price fixing illegal.

Thanks to the Supreme Court allowing more and more vertical coordination, large businesses had the law’s tacit blessing to control smaller actors, even ones outside their firm. The onus was now on the plaintiff not only to prove there was vertical price-fixing, but that it was promoting anti-competitive behavior. So, say, a fast food corporation could roll out a national value menu—even though most McDonald’s restaurants around the country are independently owned and operated—without obviously violating federal law.

Uber and other app economy businesses took it a step further. For one, the price-setting is happening digitally via an algorithm Uber controls. But, more importantly, they also changed the very nature of employment which broke some long-held assumptions of why more vertical coordination is permissible.

Even fast food value menus are, according to Paul, a hazy area in the law and one nobody, least of which the corporations themselves, want to test in court (although in Europe there have been about this very issue). But some of the fuzziness there is due to how much control Burger King actually has over the prices franchises charge for a Whopper. There’s no such fuzziness with Uber, which quite clearly determines prices that independent contractors must charge.

Paul described this less as Uber doing something completely unprecedented and more of pushing legal boundaries further than anyone else to the point where it begs some questions. “They just have more chutzpah,” she summarized. “They’ve pushed their luck to a level that actually drew consumer complaints.”

In 2015, Spencer Meyer, an Uber rider from Connecticut, sued Uber co-founder and then-CEO Travis Kalanick alleging the company fixed prices in violation of the Sherman Antitrust Act. And now, we finally get to the simple part of the argument.

The suit’s logic was very straightforward. Uber fixes the price for the service other companies provide. This is price fixing.

But the courts never ruled on the issue because of another, separate structural issue with American labor law: .

Uber’s terms of service, like those of countless other companies, waive both customers’ and drivers’ rights to jury trials or class action lawsuits, instead directing litigation to arbitration instead (Meyer’s lawyer even made the very creative argument that an iPhone keyboard automatically popping up over the hyperlink to the terms of service prevented it from being legally binding, but the judge didn’t buy it). Uber has amassed , although it’s currently working on a settlement for a “large majority” of them for .

In his final ruling upholding the motion for arbitration, Judge Jed S. Rakoff did not hide his scorn for such duplicitous tactics hidden within lengthy terms of service agreements:

This being the law, this judge must enforce it -even if it is based on nothing but factual and legal fictions.

Meyer’s attorney in the case did not respond to calls and emails.

I know the confusion is probably mounting with all the contradictory legal arguments, but here’s even more confusing stuff. Last year, a that very same arbitration agreement is in fact not enforceable. The courts, obviously, are still working this out.

But as long as these arbitration agreements have at least the veil of enforceability, it will be harder for riders to challenge Uber on price-fixing. Drivers have a better shot than riders do. Remember how the courts are now using the “Rule of Reason” on vertical coordination cases and plaintiffs have to prove anti-competitive behavior? Uber’s juicing of both sides of the supply-demand model with heavy incentives means drivers have a better case for harm, since Uber is using investor money to make cab rides artificially cheap, effectively capping a driver’s potential earnings.

But the onus isn’t completely on drivers to sue Uber. The Federal Trade Commission could. And here is where we get to the biggest failure of it all.

defending businesses in antitrust cases and getting mergers approved, particularly around privacy issues. But in September, he named Gail Levin as the new Deputy Director of the Bureau of Competition. Prior to that, Levin’s was Director, U.S. Competition for—wait for it—Uber.

Regardless of whether the FTC has the willingness to bring a case against Uber, the courts are similarly aligning in favor with big business, particularly the Supreme Court’s rightward shift, which would presume less willingness to act on antitrust matters.

There are potential solutions to this gigantic mess that appears increasingly untenable. Paul’s preferred solution is two-fold. First, she advocates for the courts to clamp down on vertical price-fixing to some extent. Second, and perhaps more importantly, she thinks the courts should allow for small businesses to, in limited cases, coordinate among each other in ways not currently allowed by antitrust law. So, drivers could organize regardless of their distinction as employees or contractors.

But these solutions would fundamentally require government agencies tasked with overseeing these companies and the courts that rule on legal challenges to do their jobs protecting American workers from exploitation, along with adapting to a rapidly changing definition of what it means to work and for whom one labors.

So far, they haven’t done that.

Or, as Paul put it, “antitrust agencies seem very happy to rescue these companies from the rock and a hard place they find themselves in.”