Brown v. Pro Football, Inc.: the Labor Exemption, Antitrust Standing and Distributive Outcomes
| DOI | 10.1177/0003603X9704200304 |
| Date | 01 September 1997 |
| Published date | 01 September 1997 |
| Subject Matter | Symposium: Antitrust in the Sports Industry |
The Antitrust Bulletin/Fall
1997
565
Brown v. Pro Football, Inc.:
the labor exemption, antitrust
standing
and distributive outcomes
BY JEFFREY L. HARRISON*
I.
Introduction
Justice
Breyer begins his reasoning in the majority
opinion
of
Brown
v. Pro FootballIwith the refreshing concession, "We do
not see any obvious answer to this problem."2 With that, he does
not exactly punt, but he does set
off
on a line
of
reasoning that, at
times, seems make-weight and, at other times, simply illustrates
the difficulty
of
the issue he has been asked to tackle." In Brown,
after the expiration
of
acollective-bargaining agreement, amulti-
*Chesterfield Smith Professor of Law, The University
of
Florida
College of Law.
AUTHOR'S NOTE: Thanks to Jonathan Gowdy and Sarah Wilson
for
their
assistance and to those who commented on this article at the Conference
on Antitrust and the Sports Industry, April 5, 1997.
2Id. at 2123.
3With this ends all football metaphors and puns. It is, as numerous
articles indicate, apowerful temptation.
©1997 by Federal Legal Publications. Inc.
566
The antitrust bulletin
employer bargaining unit consisting
of
the owners
of
professional
football teams presented to the players' union aproposal to form
practice squads
of
a set number of players and to pay the players
$1000 per week.
The
union refused, an impasse was reached, and
the
owners
implemented
the
plan.s
The
Court
was
asked
to
address whether, by implementing the plan, the owners had acted
outside
labor's
exemption
from the
antitrust
laws.>
The
Court,
with only Justice Stevens dissenting, held that the actions
of
the
owners fell within the "nonstatutory"
labor
exemption from the
antitrust laws."
In this article, Ireview the reasoning
of
the Court as it relates
to general labor and antitrust policies. My sense is that the out-
come
of
Brown is not well-supported by the logic
of
the Court.
Part
of
the problem lies in the
Court's
choice to consider labor
policy, exclusively, for guidance. The Court seems to frame the
question as: What makes for good labor policy? thereby greatly
4116 S. Ct. at 2119.
While
an
impasse
had
been reached, it
may
be
useful to note
that
the proposal at issue was
presented
by the owners for
the
first time and
summarily
rejected
by the
players'
union.
5
The
district
court
granted the
players'
motion
to
strike
the
owners'
nonstatutory
exemption
defense.
782
F.
Supp.
125
(D.D.C.
1994).
The
U.S.
Court
of
Appeals
for
the
District
of
Columbia
reversed.
50
F.3d
1041 (1995).
6On
the
history and
scope
of
the
exemption,
see
PHILLIP
AREEDA
&
HERBERT
HOVENKAMP,
ANTITRUST
LAW
276-83
(1996
Supplement).
For
a
description
and
analysis
of
Brown, see
PHILLIP
E.
AREEDA
&
HERBERT
HOVENKAMP,
ANTITRUST
LAW,
SPECIAL
ADDENDUM
TO
THE
1996
SUPPLEMENT
(1996).
There
seem
to be two issues
related
to the
issue
ofthe
immunity.
One
is
whether
it exists
after
an
impasse
is reached and the
other
is how
long
it lasts
beyond
the impasse.
The
Brown
Court
did
not
address
the
issue
of
how
long
the
exemption
would
hold
beyond
the
point
of
impasse.
For
various views, see Kieran M. Corcoran, When Does the Buzzer Sound?:
The Nonstatutory Labor Exemption in Professional Sports, 94
COLUM.
L.
REV.
1045 (1994);
Shawn
Treadwell,
An Examination
of
the Nonstatutory
Labor Exemption
for
the Antitrust Laws in the Context
of
Professional
Sports, 23
FORDHAM
L.
REV.
955
(1996); Note, Releasing Superstars
from
Peonage: Union Consent
and
the Nonstatutory
Labor
Exemption, 104
HARV.
L.
REV.
874
(1991);
Note,
Powell
v.
National
Football
League:
Modified Impasse Standard Determines Scope
of
Labor Exemption, 1990
UTAH
L.
REV.
381 (1990).
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