COLLECTIVE BARGAINING IN THE NFL: LOOKING AHEAD TO

THE EXPIRATION OF THE CURRENT CBA IN 2020

Kaitlyn O’Boye

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INTRODUCTION “I just want like $80 million.” Todd Gurley, Los Angeles Rams Running Back.1 A

number of professional players, such as Todd Gurley feel aggrieved by the NFL in

regards to their compensation. This may seem absurd, since NFL players make a

considerable amount of money, especially a player of Todd Gurley’s caliber. In reality,

NFL players are paid less than 50% of the league’s total revenue. Although some of these

players are making millions of dollars per year, the team owners enjoy significantly

higher compensation than the individuals on the field, who are, arguably, the reason that

the industry is so profitable. One commentator has compared the two as follows: “well-

heeled owners and tattoo laden athletes, or billionaires versus millionaires, respectively.”2

Despite significant declines in labor organizations nationwide3, the National

Football League Players’ Association (“NFLPA”) has endured. Potentially undermining

the NLFPA’s power, the Eighth Circuit handed down an opinion in 2011 that severely

limits the players’ use of antitrust law as a weapon to gain leverage in negotiating a

collective bargaining agreement with the NFL.

Part I of this article outlines the background of antitrust law in professional

football. The first portion outlines some of the restrictive practices that the NFL has in

1 Adam Wells, Todd Gurley Says Players Must Prepare for NFL Lockout in 2021, BLEACHER REPORT (July 20, 2018), https://bleacherreport.com/articles/2787001-todd-gurley-says-players-must-prepare-for-nfl-lockout-in-2021 2 Allen R. Sanderson, In Defense of New Sports Stadiums, Ballparks, and Arenas, 10 MARQ. SPORTS L. J. 173, 177 (2000) (discussing the financing of new professional sports franchise locations).3See Keith N. Hylton, Law and the Future of Organized Labor in America, 49 WAYNE L. REV. 685, 687 (2003) (discussing the decline in labor organizations and projecting the future of organized labor in the private sector).

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place, transitioning into two of the major reasons why the NFL is permitted to employ

these restrictive practices: the statutory and non-statutory labor exemptions from antitrust

scrutiny enjoyed by the league and the history of those exemptions in the market of

professional football.

This article also discusses current points of contention between the NFL and the

union as the expiration of the current collective bargaining agreement will follow the

2020 season. Despite a history riddled with labor strife between the parties, the union has

survived, although labor organizations nationwide have declined.

Lastly, this article focuses on the Eighth Circuit’s interpretation of the Norris-

LaGuardia Act and provides an alternative interpretation that would have allowed

players, at a minimum, to pursue an antitrust lawsuit after decertifying the NFLPA as the

players’ exclusive bargaining representative.

I. BACKGROUND A. Antitrust law in professional football

In 1890, Congress passed the Sherman Antitrust Act4, which is generally where

federal antitrust law comes from. In 1914, Congress amended the Sherman Act, enacting

the Clayton Act,5 further refining antitrust law. Section 1 of the Sherman Act prohibits

contracts that restrain trade or commerce.6 It states in relevant part: “Every contract,

combination in the form of trust or otherwise, or conspiracy, in restraint of trade or

4 Sherman Antitrust Act of 1890, ch. 647, § 1, 26. Stat. 209 (codified as amended 15 U.S.C. §§ 1-7). 5 Clayton Antitrust Act of 1914, Pub. L. 63-212, 38 Stat. 730 (codified as amended 15 U.S.C. §§ 12-27, 29 U.S.C. §§ 52-53). 6 15 U.S.C. § 1.

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commerce among the several States, or with foreign nations, is declared to be illegal.”7

Typically, an action brought challenging restrictive practices in a contract governing a

labor market will be brought under Section 1 of the Sherman Act.

Courts analyze an alleged antitrust violation under either the “per se rule” or “the

rule of reason”. Examples of per se violations are horizontal territorial restraints, group

boycotts, price fixing, among others. U.S. v. Topco Associates, Inc., 405 U.S. 596, 608-

612 (1972). These violations are inherently anticompetitive and damaging to the market;

an offender will be held liable with evidence that the anticompetitive conduct actually

occurred. Alleged antitrust violations that do not fall into the category of per se violations

are analyzed under the Rule of Reason. When a court establishes that the challenged

policy or practice has anticompetitive effects, the court will balance the restraint with the

procompetitive benefits of the practice or policy. Ohio v. American Express Co., 138

S.Ct. 2274, 2284 (2018). The per se analysis and the rule of reason analysis are mutually

exclusive.

The NFL is no stranger to antitrust litigation. From its inception, there have been

a number of player restraints that would not survive antitrust law scrutiny in most

markets. In 1957, William Radovich, an offensive lineman that played for the Detroit

Lions, brought an action under § 4 of the Clayton Act challenging some of these player

restraints.8 The Supreme Court had to determine whether or not the antitrust exemption

7 Id. 8 See Radovich v. Nat’l Football League, 352 U.S. 445, 446 (1957) (holding that the NFL is subject to the Sherman Act and plaintiff had a cause of action when he was blacklisted from the NFL).

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recognized in professional baseball9 applied to professional football. The court held that

the baseball exemption did not apply and Radovich sufficiently alleged an unreasonable

restraint of trade that caused him harm to state a cause of action under the Sherman Act.10

The court held that “the volume of interstate business involved in organized professional

football places it within the provisions of the Act.”11 Despite this application of the

federal antitrust laws to the NFL, there are still a number of policies and practices within

the NFL that restrain trade and restrain player movement from club to club.

The NFL places restraints on its labor market of professional football players by

restricting players from marketing their services freely and moving from team to team.

The NFL also restricts the product market of professional football through its monopoly

of broadcasting games. With the blessing of the Supreme Court, players have challenged

these restrictions on the labor market and the product market.

Free Agency Throughout the history of professional football, the limitations placed on player

free agency, ultimately restricting the professional football labor market, have come

under fire as being an unreasonable restraint of player movement.12 Extensive litigation

and controversy has ensued between football players and the NFL regarding whether or

not limitations on free agency constitute an antitrust law violation. The concept of free

9 See Federal Baseball Club of Baltimore v. Nat’l League of Professional Baseball Clubs, 259 U.S. 200, 209 (1922) (holding player restrictions did not interfere with interstate commerce so the Sherman Act did not apply). 10 See Radovich, 352 U.S. at 453.11 See Id. at 452. 12 See Scott E. Backman, NFL Players Fight for their Freedom: the History of Free Agency in the NFL, 9 SPORTS LAW J. 1, 2 (2002) (discussing the history and turmoil of labor relations between the NFL and the NFL players).

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agency has changed and evolved over the years in response to this litigation and

controversy.13 This paper refers to player movement among teams in the league as free

agency. Although some players are permitted to freely move from club to club, the NFL’s

free agency system prohibits all players from doing so and consequently restrains

competition in the labor market.

After the parties entered into the 1993 collective bargaining agreement, free

agency evolved into different types of free agents, depending on how many seasons a

player has been in the NFL.14 After four years in the league, players become unrestricted

free agents and have the ability to negotiate freely to sign a contract with a team of that

player’s choice; the team is not penalized for entering into negotiations with that player,

so long as the team has room for the player under its salary cap.15 Unrestricted free

agency is not a restraint of competition in the labor market of professional football

players, but only players that have played in the league for four years are eligible.

Although unrestricted free agency allows players to market their services and

provides the freedom to move from team to team, players who are not eligible for

unrestricted free agency are restricted from marketing their services and freely moving

from team to team, which restrains competition in the labor market of professional

football. Not all players in the NFL are free to negotiate with any team whenever they

want. For example, a team has the power to designate a player as a franchise player or

transition player, which protects a team against the threat of losing its best player.16 The

13 Details of the evolution of free agency is discussed infra. 14 See Backman, supra, at 44. 15 See id. at 17-19 16 See id.

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tag prevents a player from negotiating with another team, or in the alternative, provides

compensation if another team signs that player. This limitation restricts player movement

in the league and restrains competition in the labor market.

Further, after three years in the league, a player is deemed a restricted free agent

and the team carries a right of first refusal to match an offer made to the player by

another team.17 Players who have been in the league for less than three years are

exclusive rights free agents and cannot negotiate with other teams unless their current

team does not offer that player a minimum salary.18 Unrestricted free agency, like the

franchise tag, also constitutes a restraint on competition in the market of professional

football players.

Finally, rookie contracts are highly restrictive because rookies can only negotiate

with the team that drafted them.19 A similar restriction placed on employees in other

industries is a covenant not to compete. Non-compete agreements are lawful when they

are shown to be reasonable and necessary to protect the employer’s business interests,

which usually involve protecting confidentiality.20 Contrarily, an NFL team that has just

drafted a rookie player, and before even entering into a contract, does not have the same

interest of confidentiality, yet these players are limited to only negotiating with the team

that drafted them. The players are restricted in this manner before even entering into any

employment contract, which is significantly different from non-compete clauses that are

agreed to in other industries. These restrictions on player movement that prevent players

17 See Backman, supra note 6, at 46. 18 See id. 19 See id. at 50. 20Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015) (holding that non-compete and non-solicitation covenants were enforceable).

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from being able to market their services freely would likely qualify as unreasonable

restraints of trade in other markets.

The College Draft Another restriction on player movement and the labor market is the NFL draft.

The draft consists of seven rounds.21 Each NFL team gets one pick in each round of the

draft and teams pick in reverse order of finish in the previous NFL season.22 For example,

the team with the worst record gets the first pick of the first round, followed by the team

with the second worst record until the team that won the Super Bowl the previous season

has picked.23 There are variations to this structure, depending on whether or not a team

traded for draft picks or draft picks were awarded as compensation for losing an

unrestricted free agent. Generally though, this is the procedure followed every April for

the NFL draft. For a player to enter, he must be draft eligible. Article 7, Section 2b of the

2011 Collective Bargaining Agreement provides:

No player shall be permitted to apply for special eligibility for selection in the Draft, or otherwise be eligible for the Draft, until three NFL regular seasons have begun and ended following either his graduation from high school or graduation of the class with which he entered high school, whichever is earlier. For example, if a player graduated from high school in December 2011, he would not be permitted to apply for special eligibility, and would not otherwise be eligible for selection, until the 2015 draft.24 This provision of the agreement has provoked the question of whether it unduly restrains

competition in violation of antitrust law because of its restrictiveness on the player

21 NFL & NLFPA Collective Bargaining Agreement (Aug. 4, 2011) (hereinafter “2011 CBA”), Article 7, Section (2)(a) 22 Smith v. Pro Football, Inc., 593 F.2d 1173, 1175 (D.C. Cir. 1978) (holding that the professional football player draft had anticompetitive effects).23 See id. 24 2011 CBA at Article 7 Section (2)(b)

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market. Players have challenged this restriction, labeling it as a group boycott because all

of the NFL member clubs engage in a concerted refusal to deal, meaning no member

team will negotiate with any player that has not met the eligibility requirements.25 The

NFL draft has remained unchanged as the procedure for teams to select rookie players to

enter into negotiations with. Players selected in the draft by a team are restricted to play

only for that team, which restrains competition in the market for professional football

players.26

Both the eligibility and the exclusive bargaining rules are highly restrictive of the

labor market in professional football. Group boycotts, generally, would likely violate the

Sherman Act. Similarly, an exclusive bargaining condition of employment would likely

violate the federal antitrust laws because it prevents a player from marketing his services

to a number of teams and moving freely to any team.

TV Contracts The Sports Broadcasting Act of 196127 was enacted in response to antitrust

litigation. Before Congress passed the legislation, individual clubs sold their television

rights, but the NFL had a rule prohibiting clubs from selling their rights so as to allow

their games to be telecast in another club’s home territory.28 This practice restricted the

25 See Clarett v. Nat’l Football League, 306 F.Supp. 2d 379, 390 (S.D. N.Y. 2004) (holding that a player’s exclusion from the draft was an antitrust injury but that the rule was a reasonable restraint on trade). 26 See Backman supra note 6, at 7. 27 Sports Broadcasting Act of 1961, Pub. L. 87-331, 75 Stat. 732 (codified as amended 15 U.S.C. §§ 1291-1295). 28 See Matthew J. Mitten and Aaron Hernandez, The Sports Broadcasting Act of 1961: A Comparative Analysis of its Effects on Competitive Balance in the NFL and NCAA Division I FBS Football, 39 OHIO N.U. L. REV. 745, 747 (2013) (discussing the NFL’s right to collectively sell TV rights and antitrust implications).

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product market because it limited consumers’ access to the product of NFL football. The

federal government brought an antitrust suit alleging that the telecast limitation was a

restraint of trade and violated the Sherman Act.29 The court held that it was a reasonable

restraint except when a team was not playing at home.30 After the ruling, the NFL entered

into a contract with CBS to sell the league’s broadcasting rights collectively in which

CBS would determine which games were televised and in which areas games would be

broadcasted.31

The federal government brought the issue back to court and the court ruled that

the contract between CBS and the NFL was a violation of the Sherman Act because

individual clubs did not have the power to determine which games should be telecast and

where.32 In response, Congress enacted the Sports Broadcasting Act of 1961.33 The Act

states in relevant part:

The antitrust laws [ . . . ] shall not apply to any joint agreement by or among persons engaging in or conducting the organized professional team sports of football [ . . . ] by which any league of clubs participating in professional football [ . . . ] sells or otherwise transfers all or any part of the rights of such league’s member clubs in the sponsored telecasting of the games of football [ . . . ] engaged in or conducted by such clubs.34

29 See id. 30 See United States v. Nat’l Football League, 116 F.Supp. 319, 326-27 (E.D. Pa. 1953) (holding that some restrictions against telecasting certain games in certain territories violated the Sherman Act). 31 See Mitten, supra, at 749. 32 See United States v. Nat’l Football League, 196 F.Supp. 445, 447 (E.D. Pa. 1961) (holding broadcasting system did not have exclusive right to televise games and to determine when and where to televise games). 33 See 15 U.S.C. § 1291. 34 See id. (the Act also encompasses baseball, basketball, and hockey).

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The Act allows the league to pool broadcasting rights to share the television revenue from

the broadcasts among the member clubs collectively. This takes away the freedom of the

member clubs to control their own broadcasting and to determine when and where their

games will be broadcasted.

***

All of these policies seemingly restrain trade and/or player movement, which

restrict competition in the labor market of players and the product market of professional

football. Although many of these practices have been challenged as antitrust law

violations, these practices remain in place in the NFL today. As this paper discusses in

subsequent sections, some of these practices are exempt from antitrust scrutiny by means

of the statutory labor exemption or the non-statutory labor exemption.

For the practices that do not qualify for these exemptions, there seems to be a

common justification for these practices that has been recognized by various federal

courts and has prevented them from being struck down as antitrust law violations. This

justification is maintaining on-field competitive balance between the member clubs in the

league. On-field competitive balance is essential to provide the best product to

consumers.

For example, in a case that dealt with free agency, a jury found that some

restraints might be acceptable to preserve the competitive balance among the teams.35

Allowing star players to move freely between teams whenever they want would provide

35 See McNeil v. Nat’l Football League, Civ. No. 4-90-476 (D. Minn. 1992) (Special Verdict Form) (finding by the jury that the right of first refusal/compensation system was overly restrictive and resulted in economic injury).

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an advantage to larger market teams who could afford to negotiate with these players and

would disadvantage smaller market teams.

Despite the need for on-field competitive balance, these practices are still highly

restrictive of competition. The NFL escapes antitrust law violations because courts,

applying a rule of reason analysis, determine whether or not the policy or practice is no

more restrictive than necessary to maintain competitive balance among the member

clubs.36

Additionally, the draft provides a means for teams to choose among the best

college players and also serves to restrict players from choosing to play for whichever

team they wish.37 The same reasoning applies to the draft as it does to free agency in

regards to the exclusive bargaining condition of employment. Allowing players to

negotiate with any team would disrupt the competitive balance among the member clubs.

Similarly, the salary cap prevents larger market teams from gaining an advantage and

also helps to stabilize the competitive balance in the NFL.

Although the TV revenue contracts and the eligibility rule of the draft seem to be

exceptions, the underlying justification for restrictive practices in the NFL is the

procompetitive effects, which outweigh the anticompetitive effects, and allows the league

to maintain competitive balance among the teams. This analysis is only required if an

exemption from federal antitrust law does not apply. The focus of this paper is on the

labor exemption that immunizes the NFL from a variety of antitrust law violations.

36 See Mackey v. Nat’l Football League, 543 F.2d 610 (8th Cir. 1976) (hereinafter “Mackey II”) (holding that the free agency system was unreasonable because it was “overly broad, unlimited in duration, unaccompanied by procedural safeguards, and employed in conjunction with other anticompetitive practices.”) 37 Backman, supra note 6, at 7.

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B. History of the labor exemption The labor exemptions represent the intersection of labor law and antitrust law.

Federal labor policy promotes collective bargaining and employee organization. At times,

this policy conflicts with federal antitrust law because the essence of collective

bargaining has a tendency to restrict competition. To remedy this conflict, Congress and

the courts have established the labor exemption in which federal labor law trumps federal

antitrust law.38

1. Statutory exemption Antitrust law serves to preserve competition in the marketplace and does so by

prohibiting restraints on trade. For example, an agreement by rivals to refrain from

competing for employees eliminates competition and is a restraint of trade.39 As

previously noted, the NFL continues to use highly restrictive practices that restrain

competition for players and these practices have endured for years without being struck

down as antitrust violations.

One of the ways in which the NFL avoids antitrust law liability is through the

statutory labor exemption. This exemption is derived from § 17 of the Clayton Act40 and

§104(a) of the Norris-LaGuardia Act.41 The Clayton Act provides in relevant part:

The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horizontal organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or

38Perritt, supra note 38, at 120.39 See Walter T. Champion, Jr., Looking Back to Mackey v. NFL to Retrieve the Non-Statutory Labor Exemption in Professional Sports, 18 SETON HALL J. SPORTS & ENT. L. 85, 88-89 (2008) (discussing the non-statutory labor exemption in the context of the draft eligibility rule as a restrictive practice).40 15 U.S.C.A. § 17. 41 29 U.S.C.A. § 104(a).

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to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.42 In 1914, in enacting this provision, Congress sought to remedy the conflict

between federal antitrust policy and federal labor policy.43 Despite this intention, the

Clayton Act did not completely remedy the problem; therefore, Congress sought to

expand the labor exemption in 1932 in enacting § 104(a) of the Norris-LaGuardia Act,

which provides in relevant part:

No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as the terms are herein defined) from doing, whether singly or in concert, any of the following acts: (a) Ceasing or refusing to perform any work or to remain in any relation of employment. 44 The Sixth Circuit in Matter of Crowe and Associates, Inc.,45 held that “the entire

history of the Act suggests that activities must not be enjoined merely because they

violate the antitrust laws.”46 These provisions, since their enactment, have worked to

exempt labor organizations from antitrust violations and to allow labor organizations to

do what they are designed to do: collectively bargain. They did not, however, extend the

42 15 U.S.C.A. § 17. 43 See Ehredt Underground, Inc. v. Commonwealth Edison Co., 830 F.Supp. 1083, 1091 (N.D. Ill. 1993) (holding, “[t]he labor exemption to the antitrust laws reflects the accommodation between the congressional policies favoring free competition in the marketplace as reflected by federal antitrust laws and labor policies favoring collective bargaining and other union activities reflected by the National Labor Relations Act”). 44 29 U.S.C. § 104(a).45713 F.2d 211, 214 (6th Cir. 1983) (holding that a Bankruptcy Court could not issue an injunction against a strike by a union to collect pre-petition pension payments from employer). 46 Id.

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same protection to employers who collectively bargain with a union representing its

employees. The NFL needed something else to exempt it from the antitrust laws to be

successful in bargaining collectively.

2. Non-statutory exemption The non-statutory labor exemption is the mechanism by which the NFL has

survived antitrust liability for many of the restraints of trade discussed above. The non-

statutory labor exemption was born in response to growing player animosity toward the

free agency system in the NFL.

After certification of the NFLPA in the 1960’s, Joe Kapp, quarterback for the

Minnesota Vikings and the Boston Patriots, challenged what was known as the Rozelle

Rule in Kapp v. NFL.47 The Rozelle Rule required teams to agree, when one team was

signing a player, what the appropriate compensation to the player’s former team would be

for that player.48 If the teams could not agree, the commissioner had the discretionary

power to award players or draft picks that he thought was appropriate “compensation” to

the former team.49 Due to the high risk that the “compensation” might be more than the

team signing the player was willing to give up, teams were skeptical of signing new

players. This significantly chilled player movement between teams.50

The Northern District of California found that the Rozelle Rule as well as other

player restrictions were unreasonable and outside the bounds of what was needed for

47 586 F.2d 644 (8th Cir. 1978) (holding that player had to prove damages in antitrust suit, and not just an antitrust violation to recover damages). 48 See Backman, supra note 6, at 10.49 See id. 50 See id.

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successful operation of the NFL.51 Unfortunately, Joe Kapp was not able to show that he

was damaged by the restrictions and the ruling was essentially moot, although it inspired

other NFL players to take action to challenge the restrictions.52

The Eighth Circuit eventually struck down the Rozelle Rule in Mackey v. Nat’l

Football League.53 The court outlined the criteria for an employer to be exempt from

antitrust liability and introduced the elements that comprise what is known as the non-

statutory labor exemption in a professional sports context, although the Supreme Court

had previously created this exemption to operate in other industries.54 The non-statutory

exemption protects agreements between unions and employers from antitrust scrutiny.55

The purpose behind the exemption is to further national labor policy by encouraging

good faith bargaining over wages, hours, and working conditions.56

The non-statutory labor exemption has been applied in a variety of cases and is a

large part of the reason the practices outlined above still exist in professional football

today.

C. Criteria for labor exemption In 1972, fifteen NFL and retired NFL players filed an antitrust suit against the

league seeking injunctive relief and treble damages.57 The complaint alleged that the

51 See Kapp, 586 F.2d at 82. 52 Backman, supra note 6, at 12. 53 543 F.2d at 610-11 (Mackey will be discussed in further detail infra). 54 See Champion, supra note 43, at 89 (see Lee Connell Constr. V. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 622-23 (1975); Local Union No. 189 v. Jewel Tea Co., 381 U.S. 676, 689-91 (1965)). 55 See id. at 89. 56 See id.57 See Mackey v. Nat’l Football League, 407 F.Supp. 1000, 1002 (D. Minn. 1975) (hereinafter “Mackey I”) (holding that the NFL violated antitrust law because the Rozelle Rule was an unreasonable restraint of trade).

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Rozelle Rule, which was codified in the NFL Constitution and By-Laws was a per se

violation of antitrust law; alternatively, it violated the Rule of Reason.58 The case went to

trial, which lasted fifty-five days.59 At the close of the trial, the district court concluded

that the Rozelle Rule was a per se violation of the antitrust laws because it “constitute[ed]

a concerted refusal to deal and a group boycott on the part of defendants.”60 Further, the

district court held that the rule was unreasonably broad and unlimited in duration so it

violated the Rule of Reason.61 The NFL appealed the district court’s decision to the Court

of Appeals for the Eighth Circuit.62

The court, recognizing the Supreme Court’s implementation of a non-statutory

labor exemption to accommodate the policy of favoring collective bargaining in

accordance with the NLRA, rejected the players’ proposition that the exemption only

applied to an employee group.63 The court centered the analysis around the three

requirements for a party to be immune from antitrust liability: (i) the restraint on trade

affects only the parties to the collective bargaining relationship; (ii) the alleged violation

is a mandatory subject of bargaining; and (iii) the portion of the agreement sought to be

exempted was a product of bona fide arm’s length bargaining.64

58 See id. 59 See id. 60 See id. at 1007. 61 See id. at 1007-08. 62 See Mackey v. Nat’l Football League (“Mackey II”), 543 F.2d 610 (8th Cir. 1976).63 See id. at 612. 64 See id. at 614.

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The first element was a non-issue for the court since the Rozelle Rule restricting

players from freely negotiating with other teams for their services only affected the

players and the member clubs of the league.65

Moving on to the second element, the court found that the Rozelle Rule

constituted a mandatory subject of bargaining.66 Mandatory subjects of bargaining

involve issues that directly affect terms and conditions of employment.67 To determine if

an agreement contains a mandatory subject of bargaining, courts emphasize the effect of

the agreement, not the form.68 The Eighth Circuit concluded that whether a portion of an

agreement is a mandatory subject of bargaining is determined under federal labor law and

not determined based on the legality or illegality of the agreement under the antitrust

laws.69 Although the Rozelle Rule did not directly deal with hours, wages, and terms and

conditions of employment, restricting player movement has the effect of depressing

player salaries, which, the court found was enough to constitute a mandatory subject of

bargaining.70

The third and final element of the non-statutory labor exemption is the issue of

bona-fide arm’s length bargaining. The NFLPA was established in 1956, but in its early

years did not wield strong bargaining power against the NFL. The league unilaterally

implemented the Rozelle Rule in 1963.71 Although the NFL and the NFLPA entered into

65 See id. at 615. 66 See id. 67 See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 256 (2009) (holding that the stipulation that employment related discrimination claims would be dealt with in arbitration was a mandatory subject of bargaining). 68 See Mackey II, 543 F.2d at 615. 69 See id. 70 See id.71 See id. at 616

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the first collective bargaining agreement in 1968, the court in Mackey explained that the

NFLPA stood in a weak bargaining position before 1974.72 The court went on to explain

that there was no bona-fide arm’s length bargaining, specifically relating to the Rozelle

Rule, in the bargaining processes that led to the 1968 and 1970 collective bargaining

agreements.73 These agreements did not provide players direct benefits in exchange for

the continuance of the Rozelle Rule.74 The union accepting the status quo is not

equivalent to bona-fide arm’s length bargaining over the restrictive practice, the Rozelle

Rule.75

Although the agreement only affected the parties to the agreement, namely the

NFL and the players (represented by the NFLPA) and was a mandatory subject of

bargaining, there was no bond-fide arm’s length bargaining relating to the Rozelle Rule.

To qualify for the non-statutory labor exemption, a practice must meet all three elements

of the exemption. The Rozelle Rule did not satisfy the third element, which resulted in

the Eighth Circuit eliminating the non-statutory exemption as a defense that the NFL

could avail itself to avoid an antitrust law violation.76

Despite the ruling in Mackey, the “Rozelle Rule” did not really disappear, but

acquired a new name and some minor variations. The new “right of first refusal” rule that

was adopted in place of the “Rozelle Rule” became the new star of antitrust litigation

72 See id. 73 See Mackey II, 543 F.2d at 616. 74 See id. 75 See id.76 See id. (after finding the non-statutory labor exemption was inapplicable, the court found the Rozelle Rule was a violation of the Sherman Act and could not be upheld under the rule of reason).

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between the NFL and the players/NFLPA, but this time, with the NFL deploying the non-

statutory labor exemption as a weapon.77

D. History of the NFLPA and collective bargaining in football

1. The history of NFL lockouts and strikes Historically, the NFL and its players have had significant labor disputes, similar

to other professional sports markets as well as other markets in general. Although labor

disputes are prevalent in all industries, NFL players do not stand outside the NFL

headquarters in New York City with a blow up rat and picket signs to resolve the dispute,

unlike workers in other markets and employed by other employers.

The first ever player lockout by the NFL took place in 1968 and was followed by

a brief player strike, which led to the first ever collective bargaining agreement between

the players and the league.78 The next lockout took place in 1970 and was also followed

by a player strike that lasted only two days.79 The short-term strike was a result of owners

threatening to cancel the upcoming season.80

The 1974 season was characterized by unrest between the players and the teams.

Before the season, the players struck in an attempt to get more favorable terms, but the

owners refused to concede.81 Although union bargaining power was building, the players

were fearful of a canceled season and again called off the strike before the parties could

77 This litigation will be discussed in detail infra. 78 About NFLPA History, NFLPA, https://www.nflpa.com/about/history 79 See id. 80 See id.81 See id.

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reach an agreement.82 Instead, the players went to court, and as explained above, obtained

a favorable result in Mackey v. Nat’l Football League.83

In the early years of these ongoing labor disputes, the players typically conceded

more than the league due to their lack of bargaining power and the substantial impact that

a canceled season would have on their lives. The tide seemed to turn in 1982 when the

NFLPA ordered a mid-season strike that lasted for almost two months. The owners

responded by prohibiting the players from using facilities, training, getting any injury

treatment on team property, or being on team property for any other reason.84 The parties

eventually reached agreement and the players obtained favorable concessions from the

league including: (i) compensation for losses from the strike; (ii) right to severance pay;

(iii) increased minimum salaries; (iv) preseason pay; (v) greater injury protection; (vi)

more freedom to make medical decisions; (vii) requirements for agent certification; and

(viii) ability to have all contracts and salaries available to all players.85

The players continued on their quest to obtain free agency, which culminated in a

1987 strike. The players committed to sitting out for the 1987 season if the league did not

agree to eliminate the right of first refusal and grant the players wish of unrestricted free

agency.86 The players kept their promise and refused to report to their respective teams

by the time the season started; in response, the owners hired replacement players so that

82 See id. 83See Mackey v. Nat’l Football League (“Mackey II”), 543 F.2d 610 (8th Cir. 1976)84 About NFLPA History, NFLPA, https://www.nflpa.com/about/history 85 See Brian E. Dickerson, The Evolution of Free Agency in the National Football League: Unilateral and Collective Bargaining Restrictiveness, 3 Sports Law J. 165, 172-73 (1996) (discussing the history of free agency in the NFL and how the current system of free agency came to be).86 See id. at 174.

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fans still had professional football games to watch during the fall season.87 Pressure on

the union and the players caused the union to call off the strike only twenty-four days

after it began.88 The teams did not welcome the players back with open arms, however,

and continued to employ the replacement players for one more week, before finally

allowing the players to return.89 Although the players were back on the field, there was

still no collective bargaining agreement reached between the parties.90 When the 1987

strike/lockout ended, the parties found themselves back in court once again.91

After a contentious legal battle that lasted from 1987 to 1993, the parties finally

reached an agreement in January of 1993 that resulted in the Stipulation and Settlement

Agreement, which essentially became the new collective bargaining agreement.92

The parties subsequently renewed the 1993 Collective Bargaining Agreement in

1998, 2001, and 2006 without any player lockout, player strike, or litigation.93 In May of

2008, the league opted out of the last year of the 2006 Collective Bargaining

Agreement.94 This decision eliminated the final two years of the agreement, meaning that

the parties would be back at the negotiating table for what would become the 2011

Collective Bargaining Agreement.95

87 See id. 88 See id. 89 See id. 90 See Dickerson, supra note 87, at 174. 91 Will be discussed infra. 92 See Chris Deubert, Glenn M. Wong, & John Howe, All Four Quarters: A Retrospective and Analysis of the 2011 Collective Bargaining Process and Agreement in the National Football League, 19 UCLA ENT. L. REV. 1, 11-12 (2012) (discussing the 2011 NFL player lockout, the ensuing litigation, and the settlement agreement reached by the NFL and the NFLPA). 93 See id. at 13.94 See id. 95 See id.

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The labor unrest that had characterized the 1970s, 1980s, and 1990s was revived

when the parties found themselves unable to reach an agreement. The league

implemented the first player lockout since 1987 after failed negotiations.96 As it had in

the past, litigation ensued. In an effort to reach an agreement, the parties agreed to

operate without a salary cap the final year of the contract; consequently, the 2010 season

was played without a salary cap.97 The parties engaged in frustrated negotiations in an

attempt to reach an agreement before the existing agreement expired, but the parties

failed. The league instituted a player lockout on the date of the expiration of the 2006

collective bargaining agreement, which led to a player lawsuit. The players filed suit in

the United States District Court for the District of Minnesota seeking an injunction

against the league from locking out the players.98 The case was appealed to the Eighth

Circuit and the Eighth Circuit’s opinion changed labor relations between the NFL and its

players (through union representation).

2. The union’s use of decertification and antitrust law as a weapon

As noted above, going on strike was largely unsuccessful for the players to make

significant progress toward reaching their ultimate goal of unrestricted free agency. The

teams were willing to use replacement players, which provided a similar service, albeit

not at the same caliber when the players were not on strike. This meant that the players

were really only hurting themselves by sacrificing an entire year’s salary while the league

still made money, despite its revenue being significantly reduced.

96 See id. at 22. 97Seeid.at14.98 See Brady v. Nat’l Football League, 779 F.Supp. 2d 992 (D. Minn. 2011) (hereinafter “Brady I”) (enjoining the NFL’s player lockout as a violation of antitrust law).

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The union had to employ a new tactic if it was going to get the players what it

promised them. In October of 1987, after the players ended their twenty-four day strike,

several players and the NFLPA filed an antitrust lawsuit against the league in the District

of Minnesota.99 The district court denied the league’s motion for summary judgment and

the league appealed to the Eighth Circuit Court of Appeals.100 In their complaint, the

plaintiffs alleged antitrust violations with the college draft, continued adherence to

standard player contract and the right of first refusal/compensation free agency system.101

The league argued that the agreements were a result of bona-fide arm’s length bargaining

and that it was, therefore, entitled to the non-statutory labor exemption from antitrust

scrutiny.102 Contrarily, the players argued that since the collective bargaining agreement

had expired and the parties had reached impasse in negotiating a new one, the non-

statutory labor exemption had expired.103

The court applied the Mackey analysis, and found that the prior collective

bargaining agreement contained the right of refusal provision, which met the three

elements of the Mackey test for the non-statutory labor exemption.104 Unlike Mackey, the

court was presented with the issue of how long this exemption continues to protect the

league from an antitrust violation after a collective bargaining agreement has expired.105

99 See Powell v. Nat’l Football League, 678 F.Supp. 777, 778 (D. Minn. 1988) (hereinafter “Powell I”) (holding that the non-statutory labor exemption protected the league from antitrust scrutiny until the players reached impasse). 100 See Powell v. Nat’l Football League, 930 F.2d 1293, 1295 (8th Cir. 1989) (“hereinafter “Powell II”) (holding that the non-statutory labor exemption protecting the NFL from antitrust scrutiny extends beyond impasse between the parties). 101 See id. 102 See id. 103 See id. 104 See id. at 1298-99. 105 Powell II, supra, at 1298-99.

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The court reasoned that there were remedies in federal labor law that obviated the

need to seek an antitrust law remedy; for example, the union could strike, and the league

could lock the players out.106 Additionally, the parties could resort to filing an unfair

labor practice charge with the National Labor Relations Board (“NLRB”).107 The court

was concerned that allowing the players to seek treble damages against the league would

upset the balance that existed between the parties due to federal labor law.108

Further, the court recognized the employer’s obligation to bargain with the union

after the expiration of a collective bargaining agreement and also the employer’s duty not

to make unilateral changes to the terms and conditions of employment before the parties

reached impasse.109 Additionally, the employer can only make unilateral changes that

were “reasonably comprehended within its pre-impasse proposals.”110 Emphasizing the

importance of the parties reaching a labor agreement themselves, without involvement

from the courts, the court held that the players’ action could not be maintained under the

Sherman Act and that the players and the league could resort to remedies in labor law to

resolve their dispute.111 Ultimately, the court found that the non-statutory labor

exemption extended to protect the NFL beyond impasse.

Following this decision, the players and the union concertedly decided to

decertify the NFLPA as the exclusive bargaining representative of the players.112 On

106 See id. at 1302. 107 See id. 108 See id. 109 See id. 110 See Powell II, supra note 106, at 1302. 111 See id. at 1303. 112 See generally Powell II, 930 F.2d at 1305-06 (Justice Heaney dissenting) (suggesting that the negotiating relationship would only cease upon union decertification if the players decided they would be better off without union representation).

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November 3, 1989, the union formally disclaimed itself as the exclusive bargaining

representative after a majority of the players voted for decertification.113 The union

relinquished its authority to bargain on behalf of the players although it still existed in the

form of a trade association.114 The players took action and filed a class action lawsuit115

challenging the right of first refusal free agency system, under the assumption that labor

law no longer applied since they were no longer represented by a union.116 The case went

to trial and the jury found the right of first refusal/compensation system was more

restrictive than reasonably necessary and that it violated the Rule of Reason.117

The players filed yet another action in furtherance of their goal of total free

agency, White v. National Football League.118 Throughout the pendency of the White suit

in the District of Minnesota, the parties worked to reach an agreement and eventually did

on February 26, 1993.119 The Stipulation and Settlement Agreement that would govern

the parties’ relationship for the next several years was born. After the parties reached

agreement, the NFLPA, with player consent, recertified as the exclusive bargaining

113 See Jeffrey F. Levine and Bram A. Maravent, Fumbling Away the Season: Will the Expiration of the NFL-NFLPA CBA Result in the Loss of the 2011 Season?, 20 FORDHAM INTELL. PROP. MEDIA & ENT. L. J. 1419, 1443 (2010)(discussing the 2011 NFL work stoppage in comparison with the 2004 NHL lockout). 114 See id. 115 See McNeil v. Nat’l Football League, 790 F.Supp. 871 (D. Minn. 1992) (holding that protection of the non-statutory labor exemption ceased as a result of the termination of the collective bargaining relationship between the NFL and the players and could be applied retroactively). 116 See Levine, supra, at 1444. 117 See McNeil v. Nat’l Football League, Civ. No. 4-90-476, 1992 WL 315292 (D. Minn. Sept. 10, 1992) (special verdict) (finding for the players in the antitrust action). 118 See White v. Nat’l Football League, 822 F.Supp. 1389 (D. Minn. 1993) (approving settlement agreement between the parties). 119 See id.

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representative of the players on March 30, 1993.120 These events began an era of labor

peace between the NFL and the players.

3. Brady v. NFL The 1993 settlement agreement and the collective bargaining agreement entered

into by the parties was amended several times since its institution, the last time in

2006.121 The agreement mandated that the CBA would last through the 2012-2013

season, with an option for either party to opt out of the last two years.122 In 2008, the

league announced that it would opt out of the last two years of the contract, which would

terminate the CBA in March of 2011.123 The parties launched into negotiations, but were

unable to reach an agreement before the contract expired.124 The NFL instituted a player

lockout and filed an unfair labor practice charge with the NLRB, alleging that the union

failed to bargain in good faith.125

In response, the players voted to disclaim the NFLPA as their exclusive

bargaining representative and the NFLPA subsequently: (i) notified the league of its

change in status; (ii) filed a labor organization termination with the Department of Labor;

(iii) reclassified as a professional association instead of a labor organization with the IRS;

and (iv) amended its own bylaws to prohibit collective bargaining with the league on

120See Michael S. Kagnoff, While Free Agents Reap Benefits of NFL Labor Settlement Agreement, Rookies get set for Further Legal Battles, 1 SPORTS LAW J. 109, 121 (1994) (discussing restrictive practices utilized by the NFL that specifically affect rookies, such as the draft and the rookie salary cap). 121 See Brady v. Nat’l Football League, 644 F.3d 661, 666 (8th Cir. 2011) (hereinafter “Brady II”) (holding federal district courts do not have jurisdictions to enjoin employer lockouts pursuant to the Norris-LaGuardia Act). 122 See id. 123 See id. 124 See id. at 667. 125 See id.

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behalf of the players.126 After the union’s decertification, a number of players filed a class

action lawsuit on the grounds that the league violated §1 of the Sherman Act by

instituting the lockout, claiming it was an illegal group boycott.127

The NFL amended its unfair labor practice charge asserting that the union’s

decertification was a “sham”, solely for the purpose of getting the lockout enjoined.128

The United States District Court for the District of Minnesota enjoined the lockout.129

The league appealed to the United States Court of Appeals for the Eighth Circuit.

The Eighth Circuit began its analysis with the relevant statutory authority.130 The

Norris-LaGuardia Act (“NLGA”) provides in relevant part: “[n]o court of the United

States . . . shall have jurisdiction to issue any . . . temporary or permanent injunction in a

case involving or growing out of a labor dispute, except in strict conformity with the

provisions of this chapter.”131 At issue in Brady was what constitutes a “labor dispute”?

The NLGA, in § 13(c), defines “labor dispute” as follows: “any controversy concerning

terms or conditions of employment, or concerning the association or representation of

persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or

conditions of employment, regardless of whether or not the disputants stand in the

proximate relation of employer and employee.”132

The court held that the dispute between the NFL and the players was a dispute

concerning terms and conditions of employment, finding that the definition of “labor

126 See Brady II, 644 F.3d at 667. 127 See id. 128 See id. 129 See Brady I, 779 F.Supp. 2d at 1042-43. 130 See Brady II, 644 F.3d at 669. 131 See 29 U.S.C.A. § 101.132 See 29 U.S.C.A. § 113(c).

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dispute” in § 13(c) was intended to be broad.133 The court reasoned that the dispute arose

between an employer, the league, and employees, the players, both participating in the

same industry, professional football.134 The court refused to read into the statute that the

players had to be unionized to be involved in a labor dispute.135

The court cited various authorities to support its proposition that the definition of

a labor dispute did not require the players to be unionized.136 Further, the court noted that

concerted activity does not require a group of employees to be unionized to act together

to achieve more favorable terms and conditions of employment.137

The court’s holding, although not stated directly, seemed to be heavily influenced

by the players’ motive for voting to decertify the union.

[T]he parties were involved in a classic “labor dispute” by the Players’ own definition. Then, on a single day, just hours before the CBA’s expiration, the union discontinued collective bargaining and disclaimed its status, and the Players filed this action seeking relief concerning industry- wide terms and conditions of employment. Whatever the effect of the union’s disclaimer on the League’s immunity from antitrust liability, the labor dispute did not suddenly disappear just because the Players elected to pursue the dispute through antitrust litigation rather than collective bargaining.138 The court was disturbed by that fact that the players aimed to take advantage of the court

system and threaten antitrust liability to get what they wanted in the collective bargaining

process. Consequently, the court refused to recognize an antitrust suit as an economic

133 See Brady II, 644 F.3d 670-71. 134 See id. at 671. 135 See id. 136 See id. at 671-72. 137 See id. at 673.138 See Brady II, 644 F.3d at 673.

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weapon in a labor dispute and limited the economic weapons at the parties’ disposal to

those traditionally recognized by federal labor law, which includes an employee lockout.

The second part of the court’s analysis focused on the application of § 4 of the

NLGA and whether or not it applies to employers and employees or only to employees.

Focusing on the plain language, the court reasoned that employers are persons

participating in a labor dispute; therefore, the language in § 4(a), “remain in any relation

of employment” applies to employers.139 The court went on to explain that the language

“any relation of employment” includes a non-permanent work stoppage because a

relationship between an employer and employees is temporarily suspended during a

lockout or a strike.140

The court ultimately concluded that the district court did not have jurisdiction to

enjoin the lockout since the parties were involved in a labor dispute in accordance with

the NLGA.141 Further, the court declined to analyze whether or not the NFL’s non-

statutory labor exemption extended after the union rescinded its representation of the

players in the bargaining unit.142

Justice Bye of the Eighth Circuit wrote a dissenting opinion, primarily focusing

on the purpose behind the NLGA. He first disagrees with the majority’s definition of

labor dispute, noting that the intent of Congress in enacting the NLGA was “legislation

for the benefit of organized labor.”143 This congressional intent was bolstered by the

public policy at the time that the NLGA was enacted because unorganized workers were

139 See id. at 675-76. 140 See id. at 676. 141 See id. at 680-81.142 See id. at 682. 143 See Brady II, 644 F.3d at 683 (Justice Bye dissenting).

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powerless and exploited.144 Justice Bye rejects the premise that the NLRA, which

recognizes a labor dispute with non-unionized employees, extends to the NLGA because

they are separate and distinct statutes.145

The dissent also recognizes that extending the scope of a labor dispute beyond

decertification of a union is too broad.

[T]he act would tie the courts’ hands in granting injunctive relief in many routine cases where parties seek to enforce various aspects of individual employment contracts. Because courts have never viewed the NLGA as an obstacle to such exercise of equity powers, the reading of the term untethered to unionization and collective bargaining activity does not make sense.146 The dissent goes on to explain that the non-statutory labor exemption represents

the intersection between antitrust and labor law, citing Brown v. Pro Football147 in

support of its position that principles of labor law no longer apply when the collective

bargaining relationship terminates.148 Justice Bye proposes the moment of union

disclaimer as the endpoint at which the labor exemptions end and “give way to antitrust

remedies.”149

He goes on to discuss the NLGA’s legislative history, concluding that the § 4(a)

was not intended to apply to employers, but only to employees and unions.150 The dissent

recognizes the plain language interpretation of the majority, but asserts that statutory

144 See id. at 684. 145 See id. 146 Id. at 685-86 (citations omitted). 147 518 U.S. 231, 250 (1996)148 See Brady II, 644 F.3d at 686. 149 See id. at 687. 150 See id. at 688.

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interpretation is about more than just isolated words. 151The purpose of Congress is a vital

consideration to the court’s interpretation of the statute.

4. Recent impasses between the league and the union and individual players and their teams

The current collective bargaining agreement that governs the NFL and its players

that was entered into in on August 4, 2011 is set to expire after the 2020 football

season.152 In the summer and fall of 2018, players, commentators, and others were

discussing the approaching need for a new collective bargaining agreement between the

league and the players. As noted in the Introduction, Todd Gurley publicly warned fellow

players, and consequently fans, that an impending work stoppage could be on the horizon

in professional football.153

The St. Louis Rams drafted Gurley in 2015 as the tenth overall pick.154 The Rams

moved the franchise to Los Angeles and Gurley remained their go to running back.155 In

his five years playing in the league, Gurley has risen to fame as one of the top ten running

backs in the NFL, despite having a difficult 2019 season. In July of 2018, Gurley was

quoted saying, “For right now, we just need to come together and be prepared. You

always have to be prepared. We’ll just come together, pull up a couple different ideas and

151 See id. at 690. 152 2011 CBA. 153 Adam Wells, Todd Gurley Says Players Must Prepare for NFL Lockout in 2021, Bleacher Report (July 20, 2018), https://bleacherreport.com/articles/2787001-todd-gurley-says-players-must-prepare-for-nfl-lockout-in-2021 154 Los Angeles Rams, Todd Gurley Career Stats, NFL, http://www.nfl.com/player/toddgurley/2552475/careerstats 155 See id.

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go on from there. You definitely always have to be prepared for certain situations.”156

Gurley, along with other players in the league, particularly running backs, are advocating

for a greater share of league revenue, more guaranteed money in their contracts, and for

long-term deals.157

Traditionally, individual NFL player contracts are not guaranteed. The first

guaranteed contract in league history came when Kirk Cousins, quarterback for the

Minnesota Vikings, signed a three-year deal, which was fully guaranteed.158 The players,

in advocating for more guarantees in their contracts, have taken the position that, on

average, their careers are shorter than players in other professional sports leagues.159

Wear and tear on the players’ bodies, particularly running backs, evokes the need for

these players to be compensated for the risks that they take stepping onto the field. It

should be noted that the players do not seek money that the league does not have. NFL

players are paid less than 50% of total league revenue, compared to NBA players who are

paid 50% of the NBA’s league revenue.160

Richard Sherman, cornerback for the San Francisco 49ers, agreed that a strike is a

future possibility if the players are going to get the money that they deserve.161 When

asked about a potential lockout in 2021, Sherman responded, “It’s going to happen, so

156 Cameron DeSilva, Todd Gurley says NFL players ‘have to be prepared’ for lockout in 2021, RAMSWIRE (July 20, 2018), https://theramswire.usatoday.com/2018/07/20/nfl-los-angeles-rams-todd-gurley-lockout-strike-cba-2021/. 157 See id. 158 See Vincent Frank, NFL Players Call for Guaranteed Contracts as Potential Work Stoppage Looms, FORBES (July 5, 2018), https://www.forbes.com/sites/vincentfrank/2018/07/05/nfl-players-call-for-guaranteed-contracts-as-potential-work-stoppage-looms/. 159 See id. 160 See id. 161 See id.

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it’s not like guys are guessing on that one.”162 He went on to say, “Because there was a

lockout before. We don’t plan on changing anything about the deal we currently have

right now, so I don’t think it’s going to be negotiated before the end of the CBA, so it’s

going to cause a lockout and we’ll deal with it from there.”163

Other players in the league, in addition to speaking out, have taken action to fight

for individual contract guarantees. A number of players opted not to report to training

camp prior to the start of the 2019 season, including, Ezekiel Elliot of the Dallas

Cowboys, Melvin Gordon of the Los Angeles Chargers, and Michael Thomas of the New

Orleans Saints.164 Each player held out with hopes of signing larger contracts with more

guaranteed money.165 Players’ willful failure to report to their respective teams puts

pressure on the teams to offer increased salaries and has since resulted in Ezekiel Elliot

becoming the highest paid running back in the history of the NFL.166

Unfortunately, these holdouts only achieved individual victories, leaving the

NFLPA to pursue better terms and conditions for the players after the expiration of the

2020 CBA. In addition to more guaranteed money in player contracts, the players will

also be seeking a greater share of the league’s revenue and exemption for marijuana on

162 See Lorezno Reyes, Richard Sherman: NFL Lockout ‘going to happen’ in 2021, USA TODAY (Sep. 6, 2018), https://www.usatoday.com/story/sports/nfl/49ers/2018/09/06/nfl-lockout-2021-richard-sherman/1215930002/. 163 See id. 164 See 2019 NFL Training Camp Holdouts, ESPN (July 25, 2019), https://www.espn.com/nfl/story/_/id/27257313/2019-nfl-training-camp-holdouts. 165 The legal implications of these player holdouts on the enforceability of the no-strike clause in the Collective Bargaining Agreement is beyond the scope of this article. 166 See Alexandra Licata, Ezekiel Elliott is the highest paid running back in the NFL- Here’s how his contract compares to the rest of the top 10, BUSINESS INSIDER (Sept. 4, 2019), https://www.businessinsider.com/ezekiel-elliott-highest-paid-running-backs-nfl-2019-9.

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drug tests.167 The other side of the table, the league, is likely to advocate for an eighteen

game schedule, which would likely not be agreeable to the players.168

Despite the players’ initial concerns about a potential lockout, some

commentators have expressed optimism that the parties will agree to a new CBA before

any strike or lockout would be necessary.169 The parties have not reached an agreement

as of yet, therefore, a labor controversy between the league and the union could still

characterize the 2021 NFL season.

E. The NFL is exempt from antitrust law violations as a result of the NFLPA, as well as the nature of the business and its procompetitive effects.

The NFL employs a number of restrictive practices to run its business, as was

explained above. These practices are permitted due to the various exemptions from

antitrust law that the league and the business of professional football enjoy. These

exemptions are necessary to provide an attractive source of entertainment for millions of

Americans.

Although each individual club brings in its own revenue, one team cannot exist

without all of the rest. Having only one professional football team would eradicate

professional football, which is a highly popular source of entertainment for many people

across America and throughout the world. Because of this factor, the league and its

member clubs have argued that all of the NFL member teams are a single entity in

167 See Sean Wagner-McGough, NFL, NFLPA reportedly ramp up CBA negotiations eyeing a new deal before the 2019 season, CBS SPORTS (July 2, 2019), https://www.cbssports.com/nfl/news/nfl-nflpa-reportedly-ramp-up-cba-negotiations-eyeing-a-new-deal-before-the-2019-season/ 168 See id. 169 See id.

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defense of antitrust litigation.170 Further, to determine if antitrust liability attaches, courts

must determine “whether there is a ‘contract, combination…, [sic] or conspiracy’

amongst ‘separate economic actors pursuing separate economic interests,’ such that the

agreement deprives the marketplace of independent centers of decisionmaking,’ and

therefore, of ‘diversity of entrepreneurial interests,’ and thus of actual or potential

competition.’”171 Section 1 of the Sherman Act was not intended to cover instances when

“‘[a] division within a corporate structure pursues the common interests of the

whole.’”172

The Supreme Court in American Needle173 held that member teams licensing their

intellectual property via one entity, the National Football League Properties, were subject

to antitrust scrutiny because each team receives economic benefits and would normally

compete with one another for profits from licensing their intellectual property.174

The Court did not constrain all of the NFL’s practices to being subject to antitrust

scrutiny. “The fact that NFL teams share an interest in making the entire league

successful and profitable, and that they must cooperate in the production and scheduling

of games, provides a perfectly sensible justification for making a host of collective

decisions.”175 The Court pointed to “Rule of Reason” analysis when restraints on

170 See Russell T. Gorkin, Sports-League Player Restraints, Section 1 of the Sherman Act, and Federal Labor Law in the Context of the National Football League, 5 HARV. J. SPORTS & ENT. L. 1, 18-19 (2014) (discussing the need for the labor exemptions from antitrust law for the NFL to function).171 See American Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 195 (2010) (holding that licensing by the NFL of individual teams intellectual property was an illegal contract, combination, or conspiracy in restraint of trade). 172 Id. at 196 (citations omitted). 173 American Needle, Inc. v. Nat’l Football League, 560 U.S. 183 (2010). 174 See id. at 201. 175 See id. at 202.

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competition are vital to the product’s existence at all.176 Due to the nature of the business,

many practices are likely to be upheld under “Rule of Reason” analysis. 177

In addition to the labor exemptions discussed above, the “Rule of Reason” allows

the NFL to operate as a business with various anticompetitive practices. The

procompetitive effects of the league provide a reasonable basis for allowing the

anticompetitive practices.

II. LABOR ORGANIZATION MEMBERSHIP IN THE U.S. HAS DECLINED, BUT THE NFLPA HAS MAINTAINED ITS HOLD ON REPRESENTING PLAYERS IN THE COLLECTIVE BARGAINING PROCESS.

A. Nationwide employee union membership has declined as a result of advances in technology and the decline of the industrial era.

From 1983-2000, unionization in the private sector declined by 45%.178 Many

commentators have suggested various causes for the decline in unionization in the last

several decades, including: (i) the growth of technology; and (ii) the shift from an

industrial society to a post-industrial/service society.179 Historically, industrial unions

were powerful; but in contemporary society, a decrease in demand for unionized services

176 See id. at 203. 177 See American Needle, 560 U.S. at 203.178 Hylton, supra note 3, at 687. 179 See Samuel Estreicher, Labor Law Reform in a World of Competitive Product Markets, 69 CHI.-KENT L. REV. 3, 4 (1993) (discussion the decline in unionization and the reasons for such decline).

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has resulted in less unionized employees in the workforce.180 This downward trend has

yet to affect professional football players and their exclusive representative, the NFLPA.

Campaigns to organize have decreased and unions have not invested in organizing

as much as they used to.181 The decrease in demand for unionization could be related to

increased employee protection in the workplace and a friendlier environment in some

workplaces.182 Technology is also related to the decline of industrialism and the rise of

the service sector. Many jobs that were previously unionized have been replaced with

advanced forms of technology. The contribution that technology had made to society has

affected the workplace of many Americans, and as a result has decreased employees’

desires to be a member of organized labor.

Another cause recognized by commentators for the decline in organized labor is

employer opposition to a unionized workforce.183 Employers will often dissuade

employees from joining unions and will use economic weapons, such as a lockout, to

rebel against union demands. Further, although illegal, some employers will discharge

employees for participation or membership in a union. Although there are legal penalties

for this, some employees would rather not take the risk and this deters them from even

considering voting for a union in an NLRB election.184 The fear of retaliation or causing

problems at work has been effective at limiting the number of employees who desire to

be unionized in conjunction with the other factors listed above.

180 See id. at 6181 See id. at 7. 182 See id. at 8. 183 See Estreicher, supra note 147, at 9. 184 Paul C. Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization under the NLRA, 96 HARV. L. REV. 1769, 1769-70 (1983) (discussing one of the causes for labor organization decline as employer resistance to unionization by its employees).

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B. Unlike most employers, the NFL favors unionization to maintain its monopoly on professional football.

Unlike most employers in other markets, the NFL has a favorable attitude toward

collective bargaining. Collective bargaining provides the NFL an exemption from

antitrust liability.185 To qualify for the non-statutory labor exemption, a provision of an

agreement must be the product of bona-fide arm’s length bargaining. Therefore,

eliminating collective bargaining would deprive the league of this exemption.

Eradicating collective bargaining, consequently stripping the NFL of a non-

statutory labor exemption, would significantly limit the restrictive practices that the

league is permitted to engage in. The Rule of Reason remains an option for the NFL to

dodge antitrust liability, but is has not always proved successful. Therefore, the non-

statutory labor exemption provides a greater cushion for the league to continue its

business the way it currently operates.

Additionally, the NFL cannot rely on the defense that it is a single entity and

therefore not subject to antitrust scrutiny because courts have not been consistent in

deciding whether or not the league and its members make up a single entity.186

The non-statutory labor exemption gives the league the opportunity to maintain a

monopoly on professional football. Professional football is the “product” that the NFL

produces. Although the relevant market can be generalized to include all professional

185 Henry H. Perritt, Jr., Competitive Entertainmetn: Implications of the NFL Lockout Litigation for Sports, Theatre, Music, and Video Entertainment, 35 HASTINGS COMM. & ENT. L. J. 93, 120 (2012) (discussing the litigation arising from the 2011 NFL lockout and its impact on the professional sports and entertainment industries). 186 Robert C. Heintel, The Need for an Alternative to Antitrust Regulation of the National Football League, 46 CASE W. RES. L. REV. 1033, 1043-44 (1996) (discussing the application of antitrust to the NFL and why the NFL should be considered a natural monopoly).

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sports or entertainment generally, consumers are not forced to choose one professional

sport over another or one entertainment activity over another. A sports fan who lives in

Chicago could be a fan of the Chicago Bears while also being a fan of the Chicago Cubs,

the Chicago Bulls, and/or the Chicago Blackhawks. Broadening the product market to

assume that all professional sports compete with one another or that all entertainment

activities compete with one another ignores the fact that all of these separate industries

are not really in competition because they offer distinct services. Narrowing the market to

professional football, it is clear that the NFL has a monopoly on professional football.187

The non-statutory labor exemption is a vital tool that the NFL uses to bypass scrutiny of

its restrictive practices.

The NFL’s enjoyment of the non-statutory labor exemption, as well as economic

benefits that the league has received since entering into the 1993 collective bargaining

agreement,188 has culminated in the NFL having a relatively favorable attitude toward the

NFLPA in comparison to employers in other industries and markets.

C. The mutual benefit that the union provides to both the league and the players is one explanation for why the union has endured for so many years.

The theory that unionization has declined due to employer hostility and resistance

to labor organizations does not apply in the industry of professional football. As

187 Although other football leagues exist, such as the XFL and the CFL (the Canadian Football League), these leagues have different seasons than the NFL, despite the NFL and CFL seasons overlapping, and, therefore, are not competitors of the NFL. 188 David Madland & Nick Bunker, The NFL’s Win-Win Labor Agreement, Center for American Progress Action Fund, (Sept. 9, 2010), https://www.americanprogressaction.org/issues/economy/news/2010/09/09/8418/the-nfls-win-win-labor-agreement-2/ (Values of franchises rose 16.2% from 2006 to 2009).

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previously explained, the NFL favors unionization, eliminating one of the major

presumed causes of union decline in other industries. The labor market of professional

football players is not at risk of being replaced by advanced technology, although other

aspects of the industry could be.189

Although the players voted to decertify the union in 2011 to try to gain leverage

through an antitrust lawsuit, the players generally favor being unionized as well. The

same principles as to why workers in other industries support their unions apply in the

context of NFL players and the NFLPA. NFL players are not blue-collar workers who

battle unsafe and unreasonable working conditions; there are however, concerns that

players have regarding their employment benefits and safety.

For example, the recent “concussion injury litigation” has heightened concern for

players’ safety while playing football.190 Scientific research has shown a link between

playing high-level football and suffering from latent neurodegenerative diseases. The

2011 collective bargaining agreement contained provisions that created benefit programs

related to players’ health and safety.191 At the bargaining table, the NFLPA made sure it

prioritizes protecting player health and safety. This is just one example as to why the

NFL players value the union and the benefits they receive from being a unionized

workforce.

189 Referees, umpires, and other game officials in professional and amateur sports are at risk of being replaced by artificial intelligence or “robot referees”. 190 See In re Nat’l Football Players’ Concussion Injury Litig., 307 F.R.D. 351 (E.D. Penn. 2015) (approving settlement between the NFL and NFL players resulting from injuries the players sustained from getting concussions while playing football). 191 See Christopher R. Deubert, I. Glenn Cohen, & Holly Fernandez Lynch, Protecting and Promoting the Health of NFL Players Legal and Ethical Analysis and Recommendations, 7 HARV. J. SPORTS & ENT. L. 1, 40 (2016) (discussing report regarding health and safety of NFL players).

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The mutual benefits that the NFLPA provides to both the owners and the players

is one explanation for why the union has endured for so long despite unionization in other

industries and markets declining.

III. WITH A POTENTIAL LOCKOUT LOOMING DUE TO THE EXPIRATION OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT IN 2020, IT REMAINS TO BE SEEN IF THE NFLPA WILL USE DECERTIFICATION AND ANTITRUST LAW AS A BARGAINING TACTIC

A. Decertification coupled with an antitrust violation suit has historically led to agreement between the parties.

After the players’ attempt at brining an antitrust suit was rejected in Powell II

because the non-statutory labor exemption continued beyond impasse, the players opted

to relinquish their union representation.192 Players, on recommendation from the union,

voted to end their union representation to make it possible for individual players to bring

antitrust suits against the NFL.193 The District Court highlighted that “employees have an

unconditional right ‘to refrain’ from self-organization and collective bargaining which is

guaranteed by Section 7 of the National Labor Relations Act.”194 The court concluded

that the collective bargaining relationship had ceased to exist, and as such, the non-

statutory labor exemption terminated with the termination of the collective bargaining

relationship.195

192 See Powell v. Nat’l Football League, 764 F.Supp. 1351, 1354 (D. Minn. 1991) (hereinafter “Powell III”) (holding that 193See id. 194 See id. at 1358 (citing 29 U.S.C.A. § 157). 195 See id. at 1359.

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Following the district court’s decision in Powell III, individual players filed

antitrust claims challenging a proposed wage scale.196 The court allowed the case to

proceed to trial and the jury found that the league had violated the Sherman Act.

Subsequent litigation followed197 and in 1993, the parties finally entered into a new

collective bargaining agreement, which governed the parties’ labor relations for eighteen

years.

B. Despite the Players’ Success of Using Decertification as a Bargaining Tactic in the Past, the Eighth Circuit’s Holding in Brady Created Uncertainty for Future Use of Decertification.

The Eighth Circuit’s holding in Brady was a significant turning point in the 2011

negotiations and also changed the landscape of future negotiations between the NFL and

the NFLPA. There were many reactions to the decision, both positive and negative.

Proponents of the decision reasoned that denying the injunction saved the NFL

season because it forced the parties to dive back into negotiations instead of drawing the

process out in extensive and lengthy litigation.198 One of the policy arguments for why

Brady was decided correctly was that if the NFL were forced to enjoin the lockout, the

league would have to continue operations without a collective bargaining agreement and

would have to unilaterally impose terms and conditions of employment.199 This would

196 See McNeil, 790 F.Supp. at 875. 197 See White, 822 F.Supp. at 1394. 198 See Erick V. Posser, Brady v. NFL: How the Eighth Circuit “Saved” the 2011 Season by Supporting Negotiation, Not Litigation, 19 VILL. SPORTS AND ENT. L. J. 603, 607 (2012) (discussing the Eighth Circuit’s holding in Brady v. NFL and how the court’s decision saved the 2011 NFL season by forcing the parties back to the bargaining table instead of resolving the dispute with litigation).199 See id. at 642.

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have resulted in the NFL being subject to antitrust scrutiny and as was outlined in Section

I, the NFL would likely be liable for many antitrust violations.

The court applied a plain language interpretation of the text of the NLGA. The

court was unwilling to read into the statute that a “labor dispute” had to involve

unionized employees. The parties’ history of bargaining for a number of years before

expiration of the collective bargaining agreement led the court to the conclusion that it

was in fact a labor dispute that could only be resolved by resorting to labor law.200

Opponents of the opinion condemn the court for applying a strict textual

interpretation of the NLGA and focusing on the plain language of the text, but declining

to consider the legislative history of the Act.201 The legislative purpose behind the Act

revolved around protection for employees and to preserve a union’s right to order an

employee strike.202 The court’s conclusion that federal courts do not have jurisdiction to

enjoin lockouts provides the NFL with increased bargaining power and could potentially

coerce the union into accepting the league’s demands since the union no longer has the

power to decertify and seek an injunction of the lockout.203 The lack of competition and

the restrictive practices already in place within the professional football market add to the

league’s power because players cannot use the threat of taking their services to a

competitor as leverage because no competitors exist.204 Also factoring into the equation is

200 See id. at 644. 201 See id. at 642. 202 See Allison Stoddart, A Stronger Defensive Line: Extending NFL Owners’ Antitrust Immunity Through the Norris-LaGuardia Act in Brady v. NFL, 53 B.C. L. REV. E-SUPPLEMENT 123, 133 (2012) (discussing the Eighth Circuit’s opinion in Brady v. NFL and how, going forward, it deprives the players of an antitrust challenge as a bargaining tool). 203 See id.204 See id. at 134

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that the NFL can hire replacement players when players go on strike, but players do not

have the opportunity to find work elsewhere when the league locks them out, which

further disadvantages players at the bargaining table.205

Although the court held that federal courts do not have jurisdiction to enjoin an

employer lockout, the court refrained from analyzing the non-statutory labor exemption,

which left much uncertainty.206 This uncertainty has translated into questions about the

collective bargaining process that is, and will continue to take place, to reach an

agreement when the 2020 CBA expires.

C. The strength of the union’s bargaining power might have been weakened as a result of the 2011 litigation

Focusing only on the plain language, the court’s holding in Brady ignored the

realities of the business of professional football. Generally, federal labor recognizes

economic weapons that employees and employers can use in the negotiating process,

notably, strikes and lockouts. NFL players have gone on strike in the past, however, it has

been largely unsuccessful due to the immediate damage it does to the players. The

District Court opinion in Brady, citing to substantial evidence backed by affidavits,

recognized that NFL players missing a game or multiple games causes them irreparable

harm.207NFL careers are relatively short, with the average length of time in the league

being less than four years.208 These players are especially susceptible to injury, and if

205 See id. at 134-35. 206 See Posser, supra note 192, at 643. 207 See Brady I, 779 F.Supp. at 1005. 208 See id. at 1004.

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they are able to avoid injury during their career, the repetitive wear and tear on their

bodies shortens the length of time that they are able to play football.209

Short careers place greater value on every game and every practice. With that in

mind, missing a game, multiple games, and/or practices causes irreparable harm to these

players. This harm essentially forecloses the players’ ability to go on strike as an

effective economic weapon because it is more damaging to the players than it is to the

league. On the same token, player lockouts cause the same irreparable harm.

The court’s holding in Brady severely disadvantages the players because their

only option is to concede to terms and conditions of employment that the league sets

forth if they want to avoid missing games and practices. The court’s plain language

interpretation is not necessarily an improper interpretation of the statute, but fails to take

into consideration the broader effects of its holding. As the dissent points out, the purpose

behind the statute was to protect employees. In holding that federal courts do not have

jurisdiction to enjoin a lockout, the court overlooks this purpose by disadvantaging the

NFL players.

Additionally, the court avoids any consideration of the uniqueness of the NFL

business. The market for professional football is riddled with restrictive practices that

would likely result in antitrust violations if it were not for the league’s labor exemptions.

The nature of the business requires some of these restrictive practices for the league to

function; however, these restrictive practices are not unlimited.

The court refused to define the scope of the non-statutory labor exemption. In so

doing, the players are left with a sense of obscurity regarding when and if they will be

209Seeid.

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able to challenge the NFL’s restrictive practices. The court’s concern about a “sham”

decertification is certainly an issue of importance. The players reelected the NFLPA as its

bargaining representative immediately after resolution of the labor dispute, which implies

that the players were not really exercising their rights to be represented by a labor

organization or not to be represented by a labor organization.

Although this concern should not be ignored, the duration and scope of the non-

statutory labor exemption must also be considered. Although the court in Brady denies

ambiguity in the definition of “labor dispute”, other courts have referred to the endpoint

of the labor dispute as when the players are no longer represented by a union.

The Supreme Court in Brown held that the non-statutory labor exemption applied

when the parties reached impasse and the league unilaterally imposed its own last best

bargaining offer regarding a wage issue.210 The Court explained that federal labor law

allows employers to unilaterally implement terms or conditions of employment after the

parties have reached impasse, as long as a term or condition is “reasonably

comprehended” by a proposal before the parties reached impasse and the employer

bargained in good faith.211 The court highlighted that employers were between a rock and

hard place because in a case where impasse marked the end of the non-statutory labor

exemption and an employer unilaterally imposed terms or conditions of employment, the

employer would be subject to antitrust scrutiny, but if the employer imposed terms

different than their last best offer, the employer would be subject to an unfair labor

practice charge.212

210See518U.S.at234.211Seeid.at238-39.212Seeid.at241-42.

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In conclusion, the court in Brown acknowledged that antitrust exemption is not

unlimited and cited the D.C. Circuit’s opinion in the case that the players can choose to

decertify the union to avail themselves of the protection of the Sherman Act.213 The

Supreme Court chose not to specify when the non-statutory exemption expires in a

collective bargaining process, but did not reject the D.C. Circuit’s conclusion that union

decertification would mark that expiration.

The definition of “labor dispute” should not continue after “employees” have

chosen to continue their employment relationship, without being represented by a union,

thus, being outside the framework of federal labor law.

Although the holding in Brady significantly limits the players’ bargaining power,

there are some alternative avenues that the union and the players could take to gain some

of their leverage back. One is that the players could file their claim in a different circuit,

which is known as a more employee friendly circuit, like the Ninth Circuit for instance.214

The players could also seek treble damages, as opposed to an injunction to avoid

application of the NLGA altogether.215 The holding in Brady may have complicated the

players’ options when the parties cannot reach an agreement, but they are not left without

any possibility of gaining leverage in the negotiation process.

If the players prevailed on any of these strategies and were able to circumvent the

NLGA, there is no guarantee that a court would find that the league was in violation of

213Seeid.at250(citingBrownv.ProFootball,Inc.,50F.3d1041,1057(D.C.Cir.1995)).214 See Posser, supra note 192, at 649. 215 See id.

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the Sherman Act. The NFL could utilize the “Rule of Reason” to escape antitrust liability

for its own restrictive practices.216

IV. ALTERNATE ROUTES TO NFL PLAYERS REGAINING THEIR BARGAINING POWER The scope of the non-statutory labor exemption remains undefined. The Eighth

Circuit in Brady v. NFL217 did not utilize the Mackey test to determine if the non-statutory

exemption applied, but instead relied on the Norris-LaGuardia Act to deny the players’

quest for an injunction to end the 2011 NFL lockout.218 The players opted to recertify the

union and returned to the bargaining table, defeated and seeming to lack any economic

weapons.

The decision in Brady seemed to foreclose the viability of antitrust law as a

weapon against the league. In reality, the court in Brady, left the determination of when

the non-statutory exemption ceases to exist for another day. Application of the Norris-

LaGuardia Act was an alternative means the court used to admonish the players for what

seemed like a “sham decertification”.

The Eighth Circuit adopted a plain language interpretation of the language in the

Norris-LaGuardia Act. The court refused to read into the statute that decertification of the

union disqualified the tension between the players and the league as a “labor dispute”.

The plain language supported the conclusion that a dispute between employees and an

216 “Rule of Reason” analysis is outside the scope of this article. 217Brady v. Nat’l Football League, 779 F.Supp. 2d 992 (D. Minn. 2011).218 See Brady II, 644 F.3d at 682.

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employer regarding a collective bargaining agreement was a labor dispute regardless of

whether or not those employees were unionized.219

An alternative interpretation that the court could have adopted was to give

deference to the purpose of the statute. In enacting the Norris-LaGuardia Act, Congress

sought to protect a union’s right to order a strike.220 The purpose behind the statute was

not centered on an employer’s right to lock employees out. This interpretation would

likely lead to the conclusion that the Norris-LaGuardia Act does not apply to an employer

lockout.

In light of these two interpretations, the players might have success in a circuit

that defers to the purpose of the statute, as opposed to the literal language, declining to

extend the Norris-LaGuardia Act to an employer lockout and continuing on to apply the

Mackey test to determine if the non-statutory labor exemption is applicable. Because the

court in Brady avoided the Mackey test, another court is free to decide the scope of the

non-statutory labor exemption.

Alternatively, in the case of a future lockout, where the players choose to file an

antitrust action in the Eighth Circuit, the players could avoid application of the Norris-

LaGuardia Act by seeking treble damages as opposed to injunctive relief. This was the

tactic used by the NBA in 2011, although no court had an opportunity to decide the scope

of the labor exemption because the parties settled before the end of 2011. An action for

treble damages would not apply under the Norris-LaGuardia Act and would provoke an

antitrust analysis.

219 See 29 U.S.C.A. § 101220 See Stoddart, supra note 205, at 133.

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Considering the negative implications of a player strike, it would be in the

players’ best interest to preserve an antitrust attack as a tool to put economic pressure on

the league during negotiations. Although Brady was a setback in the 2011 collective

bargaining negotiations between the team and the league, the decision did not completely

eliminate the players’ use of antitrust law to put economic pressure on the league.