Brown v. Pro Football, Inc.: the Supreme Court Gets it Right for the Wrong Reasons
| Author | Gary R. Roberts |
| DOI | 10.1177/0003603X9704200305 |
| Published date | 01 September 1997 |
| Date | 01 September 1997 |
| Subject Matter | Symposium: Antitrust in the Sports Industry |
The Antitrust Bulletin/Fall 1997
Brown
v. Pro Football, Inc.:
the Supreme Court gets it right
for
the
wrong reasons
BY
GARY
R. ROBERTS*
595
When the Supreme Court decided Brown v. Pro Football, Inc.' in
June 1996,2 it resolved an issue that had been at the heart
of
pro-
tracted
and
confusing
antitrust
litigation
between
professional
sports leagues and their players' unions for over two
decades-the
extent
to
which
federal
labor
law
preempts
antitrust
law
and
thereby
exempts
the
uniform
player practices
of
aprofessional
sports league from antitrust attack. Because the Court held 8 to 1
*Professor of Law & Director of the Sports Law Program, Tulane
Law School, New Orleans, Louisiana.
116 S. Ct. 2116 (1996).
This
was the
Court's
first foray into the application of antitrust
law to professional sports except for three older decisions establishing
baseball's unique antitrust immunity, see Flood v. Kuhn, 407 U.S. 258
(1972); Toolson v. New York Yankees, 346 U.S. 356 (1953); and Federal
Baseball
Club
of
Baltimore,
Inc. v.
National
League
of
Professional
Baseball Clubs, 259 U.S. 200 (1922), and two other cases holding that
the baseball exemption did not apply to other sports, see Radovich v.
National Football League, 352 U.S. 445 (1957); and United States v.
Int'l
Boxing Club, 348 U.S. 236 (1955).
©1997 by Federal Legal Publications. Inc.
596
The antitrust bulletin
that the National Football League (NFL) was exempt in a context
that extends the labor exemption virtually to its maximum limit
(i.e.,
when
a
league
unilaterally
imposes
salary
terms
after
impasse in collective bargaining), the effect
of
Brown is that a
certified player union is now precluded from bringing or sponsor-
ing antitrust suits against its league under almost any forseeable
circumstances. Thus, unless aplayer union can viably threaten to
decertify
itself
as a union, antitrust litigation is no longer avail-
able
to it as a weapon to
enhance
its bargaining
leverage
and
thereby to obtain more favorable terms in the inevitable collective
bargaining settlement.
While this is the correct result, the Court missed a rare oppor-
tunity to clarify the law relating to both the labor exemption and
substantive
antitrust
issues as
they
apply to sports
leagues
by
jumping to the easily reached conclusion without closely analyz-
ing underlying premises. This article discusses the two lines
of
reasoning the Court might have followed to reach the same cor-
rect result, to clarify some unresolved issues, and thereby to save
sports leagues and the lower courts confusion in future cases.
In part I, this article describes the facts and legal evolution
of
the Brown case, set against the backdrop of the decades of litiga-
tion involving the labor exemption in the professional sports con-
text. In part II, it evaluates how the labor exemption should have
been analyzed and applied to Brown, concluding that the result
would
have
been
more
obvious
and
more
compelling
had
the
Court recognized that Brown was a case more properly disposed
of
by the so-called statutory (or partially express) labor exemption
rather than the so-called nonstatutory (or implied) labor exemp-
tion. Finally, in
part
III, this
article
discusses why the league
should not have been considered atypical multiemployer bargain-
ing unit
whose
members voluntarily "conspired" to restrain the
labor market, but instead asingle employer whose member clubs
necessarily must bargain and otherwise act collectively. It thereby
concludes that the
Court's
labor exemption discussion could have
been more narrowly focused and more helpful for analyzing some
difficult substantive antitrust issues in future cases.
Wrong
reasons 597
I.
Brown-the
culmination
of
two decades of confusing
litigation surrounding collective bargaining
in professional sports
A. The Brown case
The
Brown
litigation
grew
out
of
a
bitter
and
protracted
labor
dispute
between
the
NFL
and its union, the
NFL
Players
Association
(NFLPA).
A
collective
bargaining
agreement
(CBA) between
them
had expired in the summer
of
1987. When
a new agreement was not reached, the players struck,
but
after
the teams hired replacement players and continued to play games,
the strike collapsed and the regular players
went
back
to work
without
aCBA.
The
union then filed an
antitrust
suit
in
Min-
neapolis against the league, alleging that the
league's
continuing
to
utilize
restrictions
on
the
ability
of
a
free
agent
player
(i.e., one whose
contract
with his current team had expired) to
sign with and play for a new team- was an illegal "contract, com-
bination
...
or
conspiracy
...
in
restraint
of
trade"
under
section 1
of
the Sherman Act." This suit, styled Powell
v.
National
Football
League,
ultimately
ended
with
an
Eighth
Circuit
decision holding that the nonstatutory labor
exemption
protects
leagues from antitrust attack for maintaining old terms and condi-
tions after expiration
of
a
CBA
as long as there is a
collective
bargaining
relationship
between
the
league
and
the
players
The system of restrictions on veteran players whose contracts with
their current team has expired was called the Right of First Refusal/Com-
pensation System. It is described in detail in Powell v. National Football
League, 678 F. Supp. 777,
779-80
(D. Minn. 1988). Essentially, when a
player's contract expired, he was allowed to negotiate and reach a deal
with a new team, but the old team had the right to retain the player by
matching the new offer.
If
the old team chose not to match the offer, then
the new team had to "compensate" the old team in the form of rookie
draft choices, the number and round(s) being determined according to the
player's salary level under his new contract.
15
U.S.c.
§1(1997).
That
section
provides
in
relevant
part:
"Every contract, combination in the form
of
trust or otherwise, or con-
spiracy, in restraint
of
trade or commerce among the several States, or
with foreign nations, is declared to be illegal."
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