The U.S. Supreme Court heard oral argument Wednesday in
Brown v. Pro Football, Inc., a class action suit brought in '89
by nine NFL developmental squad players who alleged their salary
of $1,000 per week, imposed when league and NFLPA officials were
at a contract negotiation impasse, constituted illegal price
fixing under the Sherman Antitrust Act. At issue is the so-
called "nonstatutory labor exemption" which permits an otherwise
unreasonable restraint on trade if it was agreed upon in good-
faith collective bargaining negotiations. In '91, the players
were awarded $30.3M in trebled damages after a U.S. District
Court determined the labor exemption did not apply because it had
ended when the CBA expired in '87. An Appeals Court overturned
that in '95, ruling the NFL acted lawfully within the framework
of collective bargaining when it fixed the salary for
developmental players. A final opinion on the matter is expected
by the end of the summer (THE DAILY).
PLAYERS: Arguing on behalf of the players, Kenneth Starr
(also Whitewater independent counsel) called the NFL's action
"unilateral" and a "drastic salary restraint" which "eliminates
competition" and puts the "economic freedom of the players at
stake." He said if the Court were to bar such lawsuits, players
would be forced into a "stark, unappetizing choice" between
retaining their unions or decertifying and suing over imposed
salaries. Justice Dept. attorney Lawrence Wallace also supported
the players, saying Congress has never granted employers an
exemption for when contract terms are "changed after impasse"
(THE DAILY).
LEAGUE: Gregg Levy, representing the NFL, argued that in
the sports industry "impasse is merely a part of the collective
bargaining process. ... It never comes to an end." He warned
that allowing antitrust lawsuits in this type of situation would
"ensure resumption of the chaotic cycle" of union-sponsored
antitrust litigation. Levy added the players "want to have it
both ways -- they want to have the benefits that are afforded by
multi-employer bargaining ... But they also want to treat
employers as separate entities when it suits [their] bargaining
interests." He concluded by noting the developmental squad
players had other potential remedies at their disposal besides
filing the antitrust suit, including: filing an unfair labor
practice charge with the NLRB; decertifying the union; or joining
CFL and Arena League clubs (THE DAILY).
OTHER PARTIES: NLRB Chair William Gould, who said he did
not know why "we were not on the [government's] brief,"
acknowledged sending a letter this week offering support for the
players. Gould: "A union should not have to commit hara-kiri
before antitrust can come into play." Tulane Law Prof. Gary
Roberts: "It went as well as it could have for the league. The
way the arguments went, I predict at least an 8-1 and maybe even
a 9-0 decision in the league's favor" (THE DAILY). Gould added,
while he supports the players, he would have urged the Court to
limit the decision to pro sports (David Sands, WASHINGTON TIMES,
3/28). The Screen Actors Guild and other sports unions support
the players, while railroad, trucking and movie production
companies back the league (Dave Sell, WASHINGTON POST, 3/28).
USA TODAY reports, "The judges seemed dubious of Starr's claim
that players can invoke antitrust laws" (USA TODAY, 3/28). In
Baltimore, Brad Snyder reports some legal experts believe the
decision "could change the course of labor strife" in pro sports,
with fewer work stoppages likely if games go on while disputes
are settled in court (Baltimore SUN, 3/28).
