NFL Filing In American Needle Case Could Impact Labor Relations

By Liz Mullen, Staff Writer, SportsBusiness Journal

The NFL in a brief filed before the U.S. Supreme Court in the American Needle case yesterday argued for a ruling that could have a major impact on labor relations with NFL players, including preventing them from de-certifying the NFLPA, legal experts said. But Jeffrey Kessler, counsel for all four major sports unions in an amicus brief filed with the court in the case last month, said the NFL made a concession about coaches that could help players in the case. The NFL is asking the Supreme Court to decide the question of whether "a professional sports league and its separately owned member clubs, which exist to produce collectively an entertainment product that no member club could produce on its own, function as a single entity," the league's lawyers said in their brief. An NFL victory could, among other things, have an impact on whether unions can de-certify and sue leagues under the anti-trust laws, said Gary Roberts, who formerly worked at Covington & Burling, the NFL’s longtime law firm. Roberts, now the dean of the Indiana Univ.-Indianapolis law school, said, "If the court decides the case in favor of the league, it would immunize it from Section One (Sherman Act) anti-trust challenges, which would be very significant. I don't know if they are going to win, but they should win. I think, inherently, sports leagues are a single business. None of the teams can function independently; none have any independent value, other than being part of the league." However, Kessler, who is also outside counsel to the NFLPA and the NBPA, said the league is “arguing for broad based immunity from the anti-trust laws,” as it applies to competition for players. The league at the same time is conceding that “the NFL would not be a single entity and would be subject to the anti-trust laws for restraint on coaches. It follows automatically that the NFL could not be a single entity for the purposes of restraint of competition for players. We are confident the Supreme Court will recognize the significance of this concession.”

CASE COULD BRING "DIRE CONSEQUENCES": The NFL through a spokesperson declined comment, but the league's lawyers noted in their brief, that some of the opposing briefs in the case "warn of ... dire consequences for labor relations in professional sports if a league and its member clubs were deemed a single entity." In a footnote, the NFL said, "That argument neglects the labor market for NFL players is organized around a collective bargaining relationship that is provided for and prompted by federal labor law, and that the NFL clubs, as a multi-employer bargaining unit, can act jointly in setting terms and conditions of players employment ... without risking anti-trust liability." Kessler noted that the difference the league is trying to draw between players and coaches is that players have collective bargaining and coaches do not. “But that is only true for the moment,” Kessler said, alluding to the potential of the NFLPA de-certifying. “They say the exemption can be applied in labor markets because there is collective bargaining and that makes no sense because if there is no union in the future, there would be no collective bargaining.”