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Labor Exemption from Antitrust Part I: Collective Bargaining Agreements

Labor Exemption from Antitrust Part I: Collective Bargaining Agreements. Alternative Ways to Define the Scope of the Labor Exemption. 1) no protection for otherwise anticomp CBAs 2) exempt only those restraints contained in the agreement at the behest of the union

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Labor Exemption from Antitrust Part I: Collective Bargaining Agreements

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  1. Labor Exemption from AntitrustPart I:Collective Bargaining Agreements SPORTS LAW FALL 2010

  2. Alternative Ways to Define the Scope of the Labor Exemption 1) no protection for otherwise anticomp CBAs 2) exempt only those restraints contained in the agreement at the behest of the union 3) exempt any agreements actually made by union and mgt 4) exempt any employment practices during the pendency of a collective bargaining relationship 5) complete protection under literal language of §6 for any agreement that restrains trade in the labor market SPORTS LAW FALL 2010

  3. Eliminating Alternatives • Why doesn’t the literal language of §6 compel the adoption of Option #5? • Suppose the union agreed that the standard player contract would include a promise not to sign with a club in a rival league for 3 years after expiration of the contract? • Why should multi-employer agreements EVER be protected by the labor exemption? SPORTS LAW FALL 2010

  4. The Mackey Test 1) Restraint primarily affects only the parties to the CBA 2) Topic is a mandatory subject of bargaining under the NLRA 3) Restraint is the result of bona fide arms’ length bargaining SPORTS LAW FALL 2010

  5. Applying Mackey • Suppose NBA players, as part of revenue sharing/ salary cap, agreed w/ owners on minimum ticket prices or price of jackets? • How does Mackey’s prong (1) apply if fans are injured? • Why should the highly restrictive NHL By-law challenged in McCourt [230] be exempt, under Jewel Tea’s test [226] that the restriction be part of “arms’ length bargaining in pursuit of their own union policies”? SPORTS LAW FALL 2010

  6. Clarett • Should NFL be required under labor law to negotiate with the union about eligibility for draft? • Should unions be allowed to negotiate on behalf of potential members of bargaining unit? • Is the NFL’s eligibility rule the result of good faith bargaining? SPORTS LAW FALL 2010

  7. 2nd Cir. approach • Rejects Mackey • Suggests unionized players should have NO antitrust rights • Intervention would • force parties to “arrange affairs in a less efficient way” • Increase chance of strikes SPORTS LAW FALL 2010

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