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7/31/2019 Playing Inside the Lines of Labor Law: Professional Sports and the Non-Statutory Labor Exemption
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Playing Inside the Lines of Labor Law: Professional Sports and the Non-Statutory
Labor Exemption
I. Introduction
Each day people across the country turn on ESPN in hopes of seeing a miraculous
shot, a crazy buzzer beater, or the best save of the season. Unfortunately, it seems like
this past-time is interrupted every few years by labor stoppages related to collective
bargaining agreement negotiations. Several decades have passed since the sports we love
to watch have progressed with society towards a more organized workforce. This
industrial transformation can trace its origins to the increasing unionization of pro sports.
The National Football League Players Association (NFLPA) for instance, the union
representing professional football players is now a member of the AFL-CIO, one of the
countrys more prominent labor organizations. Memberships like this have become more
commonplace, and it seems the labor fight has always been led by football.
2011-2012 has the potential to be the tipping point regarding the intersection of
labor law, anti-trust policy, and sports. This year alone, the following leagues have or will
engage in some sort of collective bargaining related to organized labor; the National
Football League (NFL), National Basketball Association (NBA), Major League Baseball
(MLB), National Hockey League (NHL), and the Arena Football league (AFL). One of
the key features of this years collective bargaining has been the looming presence of
decertification.
This paper will analyze several concepts which embody the ongoing analysis of
sports law, antitrust, and labor law. The first concept will be the unionization of
professional sports, as well as the challenges which have brought it into the purview of
the courts. It has been a long road with many twists and turns, many of which are
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evaluated in this paper. Of primary importance is how courts have mistakenly opened
doors which were never meant to be unlocked.
I will then analyze anti-trust policy and the relatively recent application of
antitrust to professional sports. Specifically, the paper will analyze the non-statutory
labor exemption, and its application in labor actions. This will require an understanding
of the proper venue to use this tool, the arguments for and against it, as well as the after-
effects of using the idea. Embodied within this antitrust examination is the use of union
decertification; the labor definition and the non-statutory labor exemption definition
used for antitrust reasons.
Finally, I will try and find an alternative, albeit non-traditional solution to
decertification in the professional sports arena. An alternative solution is needed because
the use of decertification has bastardized the functions of Federal labor policy, creating a
vacuum where a policy solution is needed. One promising arena which may provide a
parallel structure is the use of Global Union Federations (GUFs). These are traditionally
transnational in nature, and may provide a guide to the world of professional sports where
each union relies on other leagues unions before taking offensive actions.
II. The Law of the Land
This paper would be remiss to not mention the labor and antitrust laws which
have been utilized in the athletic union context. The antitrust question is controlled by the
Sherman Act1, which Congress intended to protect competition, and prevent the
formation of monopolies.2 Every person who shall monopolize, or combine or conspire
with any other person or persons, to monopolize any part of the trade or commerce
among the several States or with foreign nations, shall be deemed guilty of a felony3
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Section 1 of the statute is usually interpreted to restrict only unreasonable restraints of
trade, thus allowing individuals to form contracts which govern the scope of trade.4
It would seem at first glance that antitrust policy should always control in a sports
context regarding restraints on players. However, in dealing with this question the Court
took a detour in arriving at the correct answer. The first time the question was dealt with
in 1922, an exception was created for baseball, which has lasted since the Major Leagues
inception.5
Baseball is the only sport which had a blanket exemption from antitrust laws
related to labor restraints until 1998, but still enjoys it in some respects.6 Thus the other
professional sports must abide by the Sherman Acts provisions seeking to protect against
monopolies and unfair trade practices.7
As the Twentieth century progressed, a natural evolution occurred whereby
athletes increasingly sought to organize into labor unions. The problem with the union
movement was the ominous presence of the Sherman Act which if literally interpreted,
seemed to and indeed did ban organized labor. In 1908, even before baseball received the
gift of antitrust exemption, the Danbury Hatters case exemplified the Courts view that
the Sherman Act barred organizing and other labor activities by the hatters union as an
illegal combination in restraint on trade.8
Decisions such as the above led to the creation of the Clayton Act and the Norris-
LaGuardia Act, which Congress passed in order to protect unions.9
The Clayton act was
generally a failure in protecting labor, which resulted in the Norris-LaGuardia act as well
as the National Labor Relations Act.10 These acts substantially broadened the scope of
union activity, and not only allowed, but promoted employer-employee bargaining with
respect to wages, hours, and other terms and conditions of employment.11
One of the
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biggest problems with the passage of this act is that it still seemed to be at odds with the
statutory labor exemption of the Clayton Act.
The Eastern District of Pennsylvania interpreted the statutory labor exemption in
Philadelphia World Hockey Club, inc., and provided an analysis which rings true today.12
When claiming the statutory labor exemption, which was intended to protect unions from
antirust liability, a court is essentially outlining how far within the bounds of the Sherman
Act, a union may act.13
A union may not act in complete disregard to all Sherman Act
provisions. Rather, they must not act in concert with any non-labor group to effectuate
their goals and policies.
14
In order to use this statutory exemption, excepting a union from
antitrust liability, the union must act in its own self-interest and not combine with a non-
labor group.15 This exemption does not help modern day professional sports unions
because it seems to impact only working conditions, whereas a collective bargaining
agreement advances interests such as salary, hours, and player movement in addition to
working conditions.
Courts recognized the gap in protection within the exemption, and expanded it to
create the non-statutory labor exemption inAmalgamated Meat Cutters v. Jewel Tea.16 In
that case, the Court, in a plurality opinion chose not to apply antitrust scrutiny to a multi-
employer agreement restricting work hours.17
The agreement inAmalgamated Meat
Cutters was a product of good faith bargaining between unions and employers concerning
wages, conditions, and hours of employment, which are mandatory bargaining subjects
under the NLRA.18 Antitrust implications of bargaining were balanced against labor
policy and the Court deemed labor policy controlling, thus exempting the agreement from
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antitrust because it related to matters of fundamental employee interests under the
NLRA.19
The non-statutory labor exemption was qualified in Connell Construction Co. v.
Plumbers and Steamfitters Local Union No. 100.20
The Court held the exemption will
only apply to agreements achieved through the collective bargaining relationship.21
In
cases such as Connellwhere a union negotiated a clause requiring subcontractors to also
have a collective bargaining agreement with the union, it was found to violate antitrust.22
The exemption was never meant to allow a union to negotiate a collective bargaining
agreement which allowed them to impose a direct restraint on competition in a business
market, by reducing the pool of available subcontractors.23
The agreement did not specify
that subcontracting could only be performed by contractors with union agreements, but
specified, it must have been by Local 100, thus violating an exemption meant to promote
the strong labor policy in favor of employee association to eliminate wage and working
condition competition.24
The agreement negatively affected non-union parties which were
not part of the collective bargaining agreement.25
Amalgamated Meat Cutters and
Connellmake it clear that labor agreements which are negotiated in good faith
concerning wages, hours and working conditions will be eligible for the exemption.
The remaining law is decertification. True labor decertification is an involved
procedure which requires numerous steps in accordance with 159 of the NLRA.26
The
effect of filing a petition to rescind authorization is the secret ballot election.27
If the
authorization is rescinded, then the role of the union in collective bargaining is instantly
ceased.28
An example of this is seen inRetail Clerks International Association AFL-CIO
v. Montgomery & Ward Company, where the employees voted for decertification, and the
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union then sued to enforce a collective bargaining agreement.29
The court however,
refused to enforce the agreement, since, once the union was decertified per election
procedures of the NLRA, they no longer could continue as the bargaining agent for
purposes of enforcing the agreement. This is not the decertification used by athletes.
Decertification used in the professional sports world is actually disclaimer, since it is rare
for the NLRB to receive petitions voting for non-recognition.30
The applicable law in labor and antitrust has thus been set out above. Where the
struggle has developed throughout sports is the context of the exemption during
collective bargaining negotiation. This is an issue courts have struggled with, and will
continue to struggle with as the sports industry becomes more sophisticated in both
economic and legal means.
III. Fields of Fun to Fields of Fire: the Transformation of Professional Sports
Off the Playing Fields
Professional sports moved through the early twentieth century virtually devoid of
collective bargaining agreements. Until 1967, most labor relations in sports were
governed by contract law. This was the only system utilized to form working
relationships in sports.31
While the first collective bargaining agreement was signed in
1967, it was actually basketball which was the first organized sport in which a union was
able to achieve objectives for the players.32
In 1969, the NLRB first brought a sports
union under their jurisdiction, since sports were interstate commerce subject to the
NLRA.33 Since that time, many other unions have grown across sports, and with these
unions came litigation.
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The first time the labor exemption was litigated with respect to a union claim was
in 1975, inRobertson v. NBA.34
InRobertson, the court struggled mightily in separating
the statutory and non-statutory labor exemption.35 The above case, although invalidly so,
stated that, an employer could never claim a labor exemption because it was created in
favor of the unions only, which was never stated in earlier cases.36
Judge Carter also
stated the labor exemption did not apply when it was in reaction to restraints proposed in
favor of the employer, despite the fact thatJewel Tea addressed all good faith
bargaining.37 Finally, the Judge held that rules concerning player restraints were not
mandatory terms of collective bargaining, and then attempted to apply the statutory labor
exemption.38
This was not a very helpful case in terms of understanding the dual
exemptions, and has been lessened in importance over the years because of appeals court
rulings.
Mackey v. NFL was the first appeals case which involved the application of the
non-statutory labor exemption to a collective bargaining agreement.39
The case centered
around the Rozelle rule which limited player movement by compensating teams who
lost players to free agency with draft picks.40 Teams would then be reluctant to sign free
agents because the cost may have been a high draft pick, thus the mobility of players was
quite limited.41
When the players challenged the rule under antitrust rules, the NFL
attempted to utilize the non-statutory labor exemption in order to defend against the
action.42
The outcome of the case is not as important as the three-pronged test crafted by
the court which stated the proper test for whether the non-statutory labor exemption
applied was whetherthe restraint on trade primarily affects only the parties to the
collective bargaining agreementwhere the agreement sought to be exempted concerns a
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mandatory subject of collective bargaining [And] where the agreement sought to be
exempted is the product of bona fide arms-length bargaining.43
This test has been built
upon over the years, thus to defeat the exemption and gain access to antitrust, a party
must overcome one of these requirements, by demonstrating it is not met.
IV. Overtime: the Non-Statutory Labor Exemption versus the End of
the Collective Bargaining Relationship
Of the three requirements for application of the non-statutory labor exemption,
players have utilized decertification in order to attempt to end the collective bargaining
agreement. Examples of players seeking to decertify the union have been seen most
recently in the NFL during the 2011 lockout.44
Decertification was also discussed by the
NBA during their respective lockout, although it was described as a nuclear option.45
Because of the third prong, the question for courts then became at what point does the
collective bargaining relationship end?
This question was first dealt with inBridgeman v. NBA, a district court case out of
New Jersey, as opposed to a district which was bound by the precedent ofMackey.46
In
this case, the NBA had been negotiating a new collective bargaining agreement, and was
having trouble settling on a final contract. To prevent ill will, the NBA players
association (the union) and the league signed an agreement which provided a moratorium
on courtroom actions for the period June 8, 1987 through October 14, 1987. Once the
moratorium expired, the players filed actions with the NLRA, and the league continued to
operate under the terms of the old collective bargaining agreement, in accordance with
labor law.47
The players wanted to escape from the collective bargaining agreement, and
thus argued that the collective bargaining agreement had ended at impasse48
, and the
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antitrust exemption no longer applied.49
The court accepted theMackey test for deciding
whether the non-statutory exemption applied, however, the issue in this case was whether
the collective bargaining negotiations had ended, which is just one prong of theMackey
test.50
TheBridgeman court rightfully looked to labor law for guidance on whether
negotiations had truly ended, such that the league was violating labor laws by imposing a
condition.51
The court recognized that ceasing collective bargaining the moment a
negotiation hit an impasse was contrary to the policy of the non-statutory labor
exemption which was meant to promote collective bargaining.
52
The court recognized
that impasse is but one block on the way to negotiating an agreement, thus in their view
the exemption for a particular practice survives only as long as the employer continues
to impose that restriction unchanged, and reasonably believes that the practice or a close
variant of it will be incorporated into the next collective bargaining agreement.53
The
effect of thissine qua non is that the end of this reasonable belief would also constitute
the end of the collectively bargained for provision.54
While this case has been glossed
over because of later cases recounted below, this author believes it was the correct,
rational decision. In producing this criterion, the court tried to honor the boundaries of the
NLRA by deferring to prior NLRB decisions. Furthermore, it prevented the players from
declaring an end to a bargaining relationship in order to access antitrust protections.
Unfortunately, the case has been subsumed within the precedents of another circuit.
A. Mr. Moooooooomentum Changes TeamsWith the ruling inBridgeman, it seemed that at least one court would be amenable
to a labor analysis of professional sports. However, from 1987-1992, the NFL players
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union worked without a collective bargaining agreement. This was the result of a strike
by the NFL players in 1987. Eventually, the union would decertify as a result ofPowell
I55, and usher in the modern era of sports, labor law, and anti-trust. 56
The central area of dispute in the 1987 negotiations for a new collective
bargaining agreement was a system in which the NFLs member teams held the rights to
veteran players even after the expiration of their contracts. Because of this system, the
teams could prevent a player from signing with other teams, much like the original
Rozelle Rule57, although this time, the union waited until negotiating a collective
bargaining agreement to fight the clause.
58
At the District Court level, Judge Doty
rejected theBridgeman test, and instead attempted to impose the labor impasse standard.
Additionally, the district court held that once impasse is reached, the labor exemption
automatically terminates, availing players of the antitrust statutes.59
Judge Doty was overruled by the 8th
circuit inPowell III. In assessing the NFLs
argument in these cases, the court made future litigants painfully aware of the various
approaches taken by courts in determining whether the Sherman antitrust act will never
apply to players services.60 Instead, the court crafted their own standard for when the
Sherman act could apply to players (employees) after a collective bargaining agreement
expired.61
Once a labor relationship begins, the collective bargaining relationship
continues beyond impasse, until the end of the relationship.62
The 8th
circuit, after
creating this standard for beyond impasse, took the ominous step of telling the parties
they could bargain furtherresort to economic force [strike/lockout]. [Or present]
claims to the NLRB.63
Unfortunately, because the court stated the collective bargaining
relationship continues until the relationship ends, it left open the decertification option,
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which would end the relationship.64
It is interesting that one of the primary reasons the
court chose to hold antitrust laws inapplicable was that they wanted to pay heed to
Federal Labor Policy.65
There were numerous side effects from this ruling. One which has remained
primary is the idea of decertification of a union. In response to the courts admonitions,
the NFLPA decertified the union in December 1989, in order to attempt to destroy the
labor relationship.66
Another side effect of the ruling is that Minneapolis has become the
primary battleground for fights between players unions and the leagues.67 The Supreme
Court dissented regarding granting certiorari to this case, but at least two judges wished
to stem the growing circuit split related to this jurisprudence.68
Minneapolis has also
become the primary location to file such labor actions. This is especially so given Judge
Dotys place on the district court in Minnesota which almost guarantees a first round win
for players.
One commentator believes that the decertification actions of the NFLPA
followingPowell IIIresulted in many improvements for football.69
As a result, the case
led to a suit by Reggie White (White v. NFL) for free agency as well as a follow-up suit
calledMcNeil.70McNeiland White shared the characteristic of non-application of the non-
statutory labor exemption because of the absence of a collective bargaining relationship.71
However, after both of these cases, the courts had still yet to address what would suffice
for decertification in the future.72
Additionally, one Judge recognized the unique nature of
this case, by stating what Judges in the past had gratuitously overlooked. A dissent
recognized that this was a group of high salaried, highly skilled athletes.73
Recognizing
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the unique character of the union allowed Judge Haney to correctly undermine the
decertification which had occurred.74
In 1994, the NBA players union was the first to use these newPowell III
standards during collective bargaining.75
NBA v. Williams is important to the
jurisprudence because it was an opportunity forPowell IIIto be applied in a consistent
manner.76 Noteworthy, however, is that the court recognized the varied opinions
concerning how long the bargaining relationship lasts, as well as what in fact is the
impasse standard.77 The court went through their own analysis of the issue, and
determined thePowell IIIstandard was correct, because it prevented an exaggeration of
antitrust concerns.78
This author believes this case represents a valid attempt by one court
to rein in the misuse of antitrust law, because as the judge cited from another case
Collective bargaining seeks to order labor markets through a system of
countervailing power. Thus it is often referred by economists as bilateral
monopoly. If such a structure is to be protected by law, then logically, the
antitrust claims between employees and employers must be
extinguished.79
The antitrust claims have obviously not ceased, otherwise the issue of
decertification would not still arise. Language like the above from the Southern
District of New York gives more context concerning why a league would take
advantage of the Minnesota courts if nothing else.
B. The See-Saw Battle ContinuesBetweenPowell III, and Williams it was somewhat unclear what direction
the non-statutory labor exemption would move. Brown v. Pro Football, Inc. gave
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some insight into the direction the Court believed was correct.80
After the 1987
NFL strike, the league did attempt to negotiate with the Players Association on
certain issues. One of the prominent issues was the status of practice squad
players.81
These players were free agents who failed to make the rosters, but were
used for practice, as well as for injury substitutes during the season.82
During
collective bargaining negotiations, the NFL put forward a plan which would pay
these players a weekly salary. The players rejected the proposal, thus the league
believed impasse had been reached on this issue, and instead put in place their
proposal for the weekly salary.
83
The practice squad players then attempted to use
antitrust laws to force the NFL to accede to their preferred bargain.84
At the trial
court in the District of D.C., the players won a large verdict, which was reversed
by the appeals court based on labor law.85
Finally, the Supreme Court granted
certiorari on the issue of essentially, whether the non-statutory labor exemption
would shield the NFL from antitrust for enforcing an agreement on their proposal
during impasse.86
The Court held that the non-statutory labor exemption survived at least to
the point at which the NFL put in place their resolutions because of labor law.87
According to the Court it is fundamentally illogical to have a legal requirement of
collective bargaining but to preclude agreements amongst the parties which would
restrict competition.88
The exemption must have applied when the NFL imposed
their last, best good-faith offer on this term, as a matter of deference to the policy
of labor law, and disallowing antitrust courts from interpreting employee-
employer relationships.89
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The Court took the time to identify the consequences of precluding the
exemption to apply in this context. If antitrust laws apply, then once impasse is
reached, an employer would face sanctions once they impose an offer.90 Also, if
an employer sought to avoid antitrust liability by ceasing negotiations once
impasse was reached, then they would be subjected to labor law violations,
meaning an employer will always be in a lose-lose situation, if after impasse, the
exemption ends.91
The Court in reaching this decision did provide employers
some leeway in post-impasse conduct, but again, no standard was set which
would relate to when a union could take advantage of antitrust provisions, and in
fact the majority rejected calls by both parties to draw a line in the sand.92
Justice Stevens did dissent on this case, but his focus underlies a recurring
issue within the context of professional sports unions.93
Athletes as a whole tend
to individually negotiate their contracts exacerbating the gap between antitrust
and labor law.94
Justice Stevens notes that the practice of individual salaries
prevailed prior to collective bargaining, but this author believes, this substantially
weakens his argument in favor of finding antitrust violations.95 NFL players
gained many benefits by unionizing, but this case exhibits the fact that in so
doing, they implicitly gave up the right to negotiate as high a salary as possible.
Collective labor means the players have given up some individual rights in return
for the economic power of collective action. By availing themselves of labor laws,
the non-statutory labor exemption implicitly prevented players from complaining
if during negotiations a proposal was not agreed upon and the league enforced
their good faith proposal in accordance with labor laws. Justice Stevens makes a
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mistake in attempting to allow players to receive two bites of the apple, one under
the NLRA, and one under the Sherman Act.
C. Will this Game Ever End?As mentioned above, in 2011, the NFL did disclaim their union. The
players were frustrated by the slow pace of negotiations, and sought the help of
the courts upon being locked out by owners.96 Once locked out, the players sought
an injunction against the lockout because they believed it violated antitrust laws.97
The players wasted very little time in making the calculated decision to disclaim
the union and proceed right to antitrust law. The players disclaimed their union on
the same day they filed the lawsuit in their home-court of Minnesota.98
Judge
Doty issued an injunction, which was immediately appealed by the NFL to the 8th
circuit.99
On appeal, rather than deal with the issues of Brown concerning
impasse, the Court reviewed only the injunction, despite the NFLs argument that
the disclaimer was a sham, used in order to gain access to the antitrust laws.100
This majority opinion was not helpful at all, except in the context of injunctions,
which is outside the scope of this paper.
The dissent by Judge Bye recognized the opportunity to utilize Brown in
analyzing the applicability of the exemption when negotiating parties reach
impasse.101
While this author disagrees with the outcome, Judge Bye does attempt
to use established principles to suggest that once the union collapsed, the antitrust
rights should have applied.102 He correctly took the majority opinion to task for
discounting the union completely in upholding the injunction.103
The majority
opinion created a perverse reality which promoted unionization for the League,
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because decertification would be a positive for the formerly collective employees
whom would then be rewarded with antitrust claims.104
This case was very
disappointing, because it could have provided an answer to a problem which may
become even more ingrained in jurisprudence.
D. Time-Out: The Impact of Decertification
The decision to decertify is not one which should be made lightly. While
there is some current benefit to using the process in order to gain access to
antitrust, there are some distinct negatives. One overarching negative is the lack
of collective action.
105
Without the backing of a union, the bargaining process
obviously ends, along with any terms or conditions meant to protect players.106
There could easily be a situation in which an injured player is simply let go by a
team because of outstanding medical costs, and since there would be no union to
provide a meaningful redress, the player is out of luck. This would probably lead
to a poor relationship between teams and players.107
Also problematic is the role that salaries will play in producing a divisive
group of players. If there is no union, then there are collective salaries, either
maximums or minimums. In essence, the free market will drive superstar salaries
exorbitantly high, while depressing the wages of the average player.108
This is an
unsustainable model in a business which is based around the concept of team.
The final problem with decertification, although athletes may not care, is it
does a disservice to collective bargaining. In Brown, the Court stressed that the
NLRB oversees the collective bargaining process.109
By utilizing antitrust,
athletes are not just taking collective bargaining away from the appropriate
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agency, but they are ending the collective bargaining relationship all together. It
would seem to be a broken system which rewards a collective group to disclaim a
valid union in order to improve the benefits of collective bargaining as a group of
individuals.
V. Changing the Rules
In light of the holding ofBrown, and the non-decision in Brady110
, it is
important to analyze why some believe that changing towards a true rule outlining
limits is a viable alternative, as well as how it would have applied to Brady.111
The proposed Kotler Rule would apply the exemption where the provision
challenged is the product of the reasonably ordinary operation of a collective
bargaining agreement.112 The rule is intended to speak to conduct which would
normally fall under the NLRA, while excising the use of antitrust laws to enact
the federal labor law framework.113
This rule seems good in practice, but I believe
it is much too broad. The Kotler rule does not look at effects on the market, but
rather, on what conduct is controlled.
This rule is promising, but needs more structural framework. While it
attempts to use NLRA framework, I believe that such a rule would be susceptible
to varied court interpretations. If anything, a rule should aim to keep these
disputes out of court. For instance, in theBrady case, if the Kotler Rule were in
effect, a court would have to dive into the issue of deciding whether a provision is
a mandatory bargaining provision. If it were, then the Kotler Rule would apply,
and no antitrust laws would be used. This may seem good, but in fact, it does not
determine an outline for impasse, or when a proposal is in good-faith, or even
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how to address forum shopping. Instead, it is more likely that such a result would
continue the practice of filing complaints in the 8th
circuit, in hopes that a ruling
would be friendly towards the union.
The Kotler Rule would also lead to courts becoming involved in
collective bargaining to the point where it would no longer be a privately
negotiated set of standards. Every proposal would be analyzed under whether it is
an ordinary NLRA clause. If a union did not like a clause, they could simply
delay until a court ruled, and similarly the leagues could propose ambiguous
clauses to test the lines. It is a good start, but I believe because of the unique
nature of professional athletes, a private-public regulatory framework which
encompasses some of the Kotler Rule would be more useful.
A. Making the Game Flow: Keeping Sports out of CourtsThe main problem with the current state of the law is that players are
almost rewarded for decertification. Usually, when this decertification occurs, it is
not in good faith as required, but rather is used to gain access to antitrust
violations.114 How can the courts prevent continued decertification in
contravention of the NLRA? The best way, in this authors view is to create a
hybrid Global Union Federation, which would complement the existing antitrust
and labor laws. Along with this new hybrid organization, whose role will be
defined below, sports unions would need to be exempted from antitrust law
related to labor restraints during collective bargaining negotiations, thus
precluding the perverse incentive to use antitrust as collective bargaining
leverage. This exemption from antitrust laws on the basis of labor would also
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provide a disincentive to decertification, since antitrust would not settle collective
bargaining issues. This would not preclude player strikes, lockouts, or formal
decertification.
GUFs are international federations grouping together unions from the
same craft or industry. The GUF then negotiates an International Framework
Agreement (IFA) which governs the rights of the parties.115 IFAs are
characterized by four elements, three of which would greatly benefit professional
sports: the involvement of an overarching union federation in the negotiation of
an agreement; a rights content derived from an International Labor Organization
(ILO) instrument which would control individual rights in a collective industry,
and procedure to review the implementation of the agreement.116 In the context of
sports, the overarching union would be made up of a negotiator chosen by each
athletic union in order to represent the divergent interests of large and small alike.
A key characteristic of a GUF is that it still functions by respecting freedom of
association as well as collective bargaining.117
If the GUF is not performing collective bargaining, then why even
undertake creating them? Simply put, the organization would allow a social
dialogue to take place between owners, and athletes, especially in light of the
defined rights in the ILO document. The IFAs between the GUF and the leagues
would promote a meeting space, where each side may voice their opinion
concerning ongoing labor arrangements.118 IFAs in other contexts often contain
communication policies, officers with administrative responsibilities, informal
channels for reporting concerns, as well as formal complaint procedures.119
The
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formal complaint procedures are usually heard in arbitration. This framework
would replace the public courtroom with arbitration rooms, and use experts from
the field of labor law.120
The presence of formal complaint procedures would be very important in
this proposed model. If athletes are unsure whether a negotiated clause is related
to labor, they can use the GUF to speak about the intent with league heads. If that
fails, the NLRB will still be in place, and the two sides could ask for an advisory
letter concerning the specific policy. Once the NLRB has ruled on whether a
policy is labor-related or not, then the complainant could bring it to the attention
of the proper court if it falls within antitrust. The importance of this complaint
framework is it would prevent an unnecessary application of the non-statutory
labor exemption. Parties would know in advance where a courts ruling was
needed because of the arbitrator in place. The beauty of the GUF/IFA system is in
the way it complements existing laws.121
This part of the framework encompasses
some of the Kotler Rule.122
On the opposite side of an advisory NLRB opinion concerning labor
would be decertification. Since the arbitrator and possibly the NLRB will have
ruled on whether an issue primarily impacts labor, it will be up to a union to
decide to decertify. The decertification of a union would have to accord with
American Sunroof, and still be in good faith.123
If in good faith, then the union
decertification would continue until formal union recognition procedures have
occurred.124
This would prevent the current system of a disclaimer which
promotes union desire to decertify and employer predisposition to unionization. It
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would also reflect the weight which should be attached to any decision to
decertify.
While thus far, it seems the system is only advantageous to workers; IFAs
are also helpful to employers. One of the primary benefits seen by companies who
enact such agreements is that people view companies in a positive light regarding
corporate responsibility.125 In the context of modern professional sports
organizations this is a huge positive considering the 24 hour news cycle labor
disputes often take up. If an IFA effectively prevents a labor action from
devolving into a legal battle, the public image of a respective league is greatly
improved.126
The greatest challenge lies in crafting and implementing the IFA. Because
collective bargaining is still recognized on the local level, the national
organization would have to provide a spokesperson from the respective unions, as
well as getting the unions as a whole to volunteer to be part of the organization.127
A key understanding with the passage of any IFA would be that it is not
instantaneous, but rather progress would take time, since all parties would be in a
new system.128
Over this time, there would of course be costs.
Many may argue the costs of implementing such a system would outweigh
the value returned. This is shortsighted, because it does not take into consideration
the amount lost due to cancelled games and practices. For instance, over the
course of the year 2011-2012, both the NBA and NFL were subject to lockout.
The NFL lost off-season practice time, during which players would have been
paid. The NBA did not start until Christmas of 2011, and when it did begin, the
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season was significantly shortened. The combination of these lost games not only
impacted the individual players but also the respective cities which host teams and
rely on tax dollars from players who work in those cities.129 Implementation of the
system would reduce labor actions and cost less money.
Another criticism may be that implementing a GUF detracts from the
unionization rights which have been gained over the previous several decades.
This is oversimplifying the nature of the game. Rather than detracting from
unionization, this system would galvanize unions across the sports industry to
work together towards the common goal of labor peace with social
responsibility.130
VI. A New Season
Over the course of this paper, the sports world which began as individual
entertainers transformed into an industry with a complex legal framework
utilizing antitrust and labor provisions. This is not only unnecessary but wrong.
Professional athletes across different unions would greatly benefit from a system
akin to the GUF. Rather than dealing with questions concerning impasse and the
beyond impasse standard, the GUF would put in place a simple private-public
framework. Courts would only be used when the NLRB or an arbitrator, who
specializes in labor law, felt that decertification could be used to achieve the
desired goals. While it is radical to depart from what has been normal, it is also a
system which closes off the respective players unions from using incorrect law. It
is time, once and for all, for the realization that antitrust law should not be used as
a back-up to labor law. That is the true essence of why a GUF and corresponding
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IFA is the correct step for unions to pursue. Prosperity, peace, and playing the
game can coexist if given the proper milieu.
1 15 U.S.C.A. 1-7 (2012).2 54 Am. Jur. 2dMonopolies and Restraints of Trade 1 (Database Updated 2012).3
15 U.S.C.A. 2.4
First recognized by the Supreme Court in the early 20th
century Standard Oil Co. v. United States, 22 U.S.
1, 55 (1911) The objective anti-competitive purpose will not invalidate a restraint which is not
unreasonably restrictive of competitive conditions.5Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs et al., 259 U.S.
200, 208 (1922) the business of giving baseball exhibitions is purely a State affair. but see Flood v. Kuhn,
407 U.S. 258, 258 (1972) The antitrust exemption of baseball is an established aberration in light of the fact
that the other interstate professional sports are not afforded the same protections.6 15 U.S.C.A. 26b. The Curt Flood Act of 1998 revoked baseballs antitrust exemption relating to labor
relations. Now, baseball players may bring actions under antitrust related to the collective bargainingagreement, and most notably compares baseball to all other professional sports negotiations.7See supra. n.4 and 6.8Loewe v. Lawlor, 208 U.S. 274, 292 (1908).9
Martin I. Kaminsky, The Anti Trust Labor Exemption: An Employer Perspective, 16 Seton Hall L. Rev. 4,
11-13.10 29 U.S.C.A. 151-169 (2012). See Milk Drivers Union v. Lake Valley Farm Products, Inc. , 311 U.S.
91, 102 (1940) The NLAconsidered as a whole and in its various parts was intended to drastically
curtail the jurisdiction of Federal Courts in labor disputes--- [and it] was further the purpose of Congress to
further extend the prohibitions of the Clayton Act [preventing decisions interpreting union activity as
antitrust violations.11See 29 U.S.C.A. 102, 158(d) (2012); See e.g. Cox, Archibald, The Duty to Bargain in Good Faith, 71Harv. L. Rev. 1401, 1408 (1958) An employer must look upon labor as an equal partner, andone partner
cannot do anything without the other.12Philadelphia World Hockey Club, inc. v. Philadelphia Hockey Club, inc., 351 F. Supp. 462, 497-99 (E.D.
Pa. 1972).13
Id. at 498.14Id. at 498 citing United Mine Workers v. Pennington, 381 U.S. 657, 664-65 (1965).
15Id. at 497.16 381 U.S. 676 (1965).17Id. 689-90. See also Charles D. Bonnano Linen Serv. V. NLRB, 454 U.S. 404, 409 (1982) The NLRA
does not specifically endorse multi-employer bargaining, but the Supreme Court has interpreted such
agreements to be a vital factor in the effectuation of collective bargaining.18Amalgamated Meat Cutters, 381 U.S. at 689.19Id. at 691.20 421 U.S. 616 (1975).21
Id. at 635.22
Id. at 624.23
Id. at 623.24
Id. at 622.25Id. at 622-24.26 29 U.S.C.A. 159 (e). A union must file a petition with the board, along with 30% of the employees that
they desire a union be authorization to bargain for them be rescinded and a secret ballot election conducted.27Id.28See e.g. Retail Clerks Intern. Assn AFL-CIO v. Montgomery Ward & Co. , 316 F.2d 754, 757-58 (7th Cir.1963).29Id.30Corrugated Asbestos Contractors, Inc. v. NLRB, 458 F.2d 683, 687 (5th Cir. 1972).
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31 Heather R. Insley, Major League Umpires Association: Is Collective Bargaining the Answer to or the
Problem in the Contractual Relationships of Professional Sports Today. 29 Cap. U.L. Rev. 601, 602 (2001)
infra note 8 The NBA was the first league to sign a collective bargaining agreement in 1967.32Id.33
Id. at 613.34
389 F. Supp. 867 (S.D. N.Y. 1975) but see supra. note 13, at 498-99 The NHL attempted to claim thenon-statutory labor exemption, but was not allowed because there was no proof of union conspiracy with
the NHL in reaching an agreement.35Robertson, 389 F. Supp. at 886-87.36Id. at 884-886 with supra. note 16 17.37Robertson, 389 F. Supp at 886-87 with supra. note 17.38Robertson, 389 F. Supp. at 389.39 543 F.2d 606 (8th Cir. 1976).40Id. at 610-11.41Id.42Id. at 612. The court did declare that the rule violated Sherman antitrust provisions under a rule of
reason analysis.43
Id. at 614-15.44
See e.g. Brady v. National Football League, 640 F.3d 785, 788-89 (8th
Cir. 2011).45 Sam Amick, Group of NBA Players Discuss Possibility of Decertification , Sports Illustrated, November
3, 2011, http://sportsillustrated.cnn.com/2011/writers/sam_amick/11/03/nba.labor.union/index.htm.46 675 F. Supp. 960 (D. N.J. 1987).47Id. at 963.48 Impasse is the point at which 2 parties in a labor situation are deadlocked. Neither party can move
forward or retreat from its position at this point. It requires good faith to get to impasse. C.C. Bjorklund,
Collective Bargaining Impasse, 25 Am. Jur. Proof of Facts 2d 241 (2012).49Id. at 961.50Id. at 965.51
Id.52
Id. at 966.53
Id. at 967.54Id.
55Powell v. National Football League, 930 F.2d 1293 (8th Cir. 1989). As a point of reference it should benoted that Justices White and Blackmun recognized the impending problems with this line of cases, and
would have granted certiorari on this case. 498 U.S. 1040 (1991).56 Peter King, The Surreal Strike of 1987: Remembering a walkout that helped create todays NFL, Sports
Illustrated, October 15, 2007 at 13. Peter King is one of the foremost NFL writers, and this title sums up his
memories of the strike. At the time of the article the NFL was booming, and league popularity was at an all
time high.57
See supra. n. 40.58
Powell v. National Football League (Powell I), 678 F. Supp. 777, 780-81 (D. Minn., 4th
Div. 1988).59
Powell I, 678 F. Supp at 788-89.60
Powell III, 930 F.2d at 1301 citing Mid-America Regional Bargaining Association v. Will County
Carpenters, 675 F.2d 881, 893 (7th Cir. 1982) andPrepmore Apparel v. Amalgamated Clothing Workers ,
431 F.2d 1004, 1007 (5th Cir. 1970). These cases both involved employees attempting to use antitrust
statutes to enforce provisions of their respective collective bargaining agreement.61Powell III, 930 F.2d at 1302.62Id. at 1303-04.63Id. at 1304.64Id. but See American Sunroof Corporation-West Coast Inc. 65Id. at 1303.66
McDonough, Eric R.,Escaping Antitrust Immunity- Decerti fication of the National Basketball Players
Association, 37 Santa Clara L. Rev. 821, 842-43 (1997). The NFLPA did not recertify as a union until
1992, but they did not abide by NLRA statutes.
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67 Richard R Sandomir, Court in Minnesota has been a Home Field for Leagues Labor Disputes , New
York Times, March 12, 2011, available athttp://wwwnytimes. com/2011/03/13/sports/football/13judge
.html?_r=1&pag ewanted=all. Interestingly, in that same article Judge Doty was very critical of the money
aspect that owners were fighting for. Especially, because in his view, owners routinely act as if they are
routinely being beaten down.68
Powell, 498 U.S. at 1040. Justice White would have granted cert. which would be unremarkable but forthe fact he was an ex-professional football player.69
Eric R. McDonough,Escaping Antitrust ImmunityDecertification of the National Basketball
Association, 37 Santa Clara L. Rev. 821, 842-43 (1997).70See McNeil v. NFL, 790 F. Supp. 871 (D. Minn. 1992); White v. NFL, 822 F. Supp. 1389 (D. Minn.
1993).71McNeil, 790 F. Supp. at 866-67 and White, 822 F. Supp. at 1430-31. Those sections address the ongoingstructure of the NFLPA as a union.72Butsee American Sunroof Corporation-West, Inc., 243 NLRB 1128, 1129-30. A disclaimer was valid
where the union evidenced intent to comply with the disclaimer by taking actions consistent with the
disclaimer. with Corrugated Asbestos Contractors, Inc., 458 F.2d at 687.A disclaimer to be effective, must
be done in good faith.73
930 F.2d at 1305 dissentof Judge Haney.74
Id.75NBA v. Williams, 857 F. Supp. 1069, 1077 (S.D.N.Y. 1994).76Id.77Id. at 1076-77.78Id. at 1078.79Id. citingMichael S. Jacobs & Ralph K. Winter Jr.,Antitrust Principles and Collective Bargaining by
Athletes: of Superstars in Peonage, 81 Yale L.J. 1, 22 (1971).80 518 U.S. 231 (1996).81Id. at 234-35.82Id.83
Id.84
Id. at 235.85
50 F.3d 1041 (C.A.D.C. 1995).86 518 U.S. at 234.
87Id. at 236.88Id. at 237.89Id. at 237-38.90Id. at 241-42.91Id.92Id. at 247-49.93Id. at 251-266.94
Id. at 256.95
Id.96
Brady v. National Football League, 640 F.3d 785 (8th
Cir. 2011).97
Id. at 787.98Id. at 788.99Brady v. NFL, No. 11639, F. Supp. 2d, 2011 WL 1578580 (D. Minn. Apr. 27, 2011).100
Brady, 640 F.3d at 788.101Id. at 798.102Id. at 799. The court should have ruled that the disclaimer was in bad faith, and allowed negotiations to
reach an actual impasse. By ruling in this case, I believe they set a dangerous roadmap whereby anytime a
professional sports union feels collective bargaining is failing, decertification will never be questioned, and
antitrust instantly utilized.103
Id.104
See Id.105
Michael C. Harper,Multiemployer Bargaining, Antitrust Law, and Team Sports: the Contingent Choice
of a Broad Exemption, 38 Wm. & Mary L. Rev. 1663, 1723-25 (1997).
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106Id. at 1725.107Id.108Id. at 1726.109Brown, 518 U.S. at 242.110
See supra. n. 79 and n. 95.111
Johnathan Kotler,Parallel Unionism in Professional Hockey: Redefining the Non-Statutory LaborExemption to the Antitrust Laws, 17 Fordham Intell. Prop. Media & Ent. L.J. 843, 864-66 (2007). This will
be known as the Kotler Rule.112Id.113Id.114See Brady, supra. n. 95.115 Renee-Claude Drouin,Promoting Fundamental Labor Rights Through International FrameworkAgreements: Practical Outcomes and Present Challenges, 31 Comp. Lab. L. & Poly J. 591, 592-93
(2010). Normally, the agreements are negotiated across borders so that transnational companies maintain
production while respecting international labor rights. There is no reason the idea can not be adapted to
professional athletes, especially because one of the primary motives is to keep revenue steady and
encourage labor peace.116
Id. at 593. A provision concerning suppliers and business partners was not included because the product
which is created by athletes is not a consumable good in the way that a Nissan or a Chiquita Banana is.117Id. at 594-95.118Id.119Id.120Id.121See generally Id. at 596, 600. GUFs are intended to highlight national labor law, and existing industrial
frameworks, in order to facilitate dialogue as well as improvements to the spheres within which a given
trade is operated.122See supra. n. 111.123See supra. n. 64.124
See 29 U.S.C. 159 (West 2012). This is the NLRA section which governs representative elections.125
Id. at 607-08.126
Id. at 607. Many companies have noticed a defined reduction in labor disputes upon enacting IFAs.127Id. at 612.
128See Id. at 618. When Chiquita and IKEA enacted IFAs, it did take a long time for the attitudesconcerning unionization to progress. The respective sports leagues could expect less time than did these
companies because Federal labor law accepts unionization, and in fact endorses it.129 Patrick Rische,NBA Lockout Costs League $800 Millionand Counting; Players Justified to Fight in
Courts, Forbes, November 16, 2011, available at http://www.forbes.com/sites/prishe/2011/11/16/nba-
lockout-costs-league-800-million-and-counting-players-justified-to-fight-in-courts/.130Id. at 628 citingJohn Brathwaite & Peter Drahos, Global Business Regulation 538, 7 (2000). GUFs have
been called a weapon for the weak that allows social actors to create opportunities for themselves to
change existing regulatory orders.