Multiemployer Bargaining, Antitrust Law, and Team Sports: The Contingent Choice of a Broad Exemption

Twenty-four years after pronouncing that Congress[ ,]... not... this Court[, must remedy] any inconsistency or illogic in the long standing exemption of baseball, but not other sports from the reach of the antitrust laws,\u27 the Supreme Court last term reduced substantially the uniqueness of Major League Baseball\u27s control over its labor market. The Court did so not by exposing baseball to antitrust attack, but rather by clarifying that restrictions on player labor mobility and freedom of contract imposed by all North American leagues of professional sports teams2 also enjoy an exemption from antitrust scrutiny as long as their labor markets are subject to collective bargaining.3 In Brown v. Pro Football, Inc.,4 the Court held that employers could conspire and agree to take actions to impose controls on a labor market, if those actions grew out of and were directly related to a multiemployer bargaining process, did not \u27offend the federal labor laws that sanction and regulate the process, affected terms of employment subject to compulsory bargaining, and concerned only parties to the collective bargaining relationship.5 All major professional team sports clubs have joined with other league clubs to bargain in multiemployer units with unions representing the athletes that they employ. As long as a multiemployer bargaining relationship exists, league-imposed restraints on player labor markets should easily meet the Court\u27s other conditions. The Brown holding, therefore, effectively enables leagues in every sport to be as free of antitrust constraints in order to control player mobility and salaries as Major League Baseball has been under its special, long standing antitrust exemption. How one greets Brown inevitably will depend in part on how one views the antitrust challenges that players have made against such league-imposed labor market restraints as restrictions on mobility between teams,\u27 rookie drafts,8 and salary caps.\u27 Those individuals who think that the antitrust laws should be concerned only with restraints on product markets, and not with restraints on input markets in general or with labor markets in particular, may welcome Brown\u27s exemption of labor market restraints. Those individuals who think that the labor market restraints typically imposed by sports leagues are reasonable under an antitrust analysis that weighs heavily the contributions of such restraints to maintaining athletic balance that enhances the league\u27s competitiveness with other forms of entertainment also may welcome the decision. Others who believe that the antitrust laws should protect a player\u27s negotiation of a free-market wage for any extraordinary services the player provides should give Brown a cold reception. This should be true for those concerned with the ultimate impact on the sports product of restraints discouraging talent development and for those concerned with insuring the extraction of a just wage for labor from a cartel of employers. Regardless of their inclinations on these ultimate issues of antitrust law, however, both sports fans and lawyers (including those who are both), have reason to lament the result in Brown. For reasons elucidated in the final section of this Article,14 sports fans interested primarily in uninterrupted presentations of athletic competition are likely to be disappointed by more work stoppages in professional sports as a result of Brown. For lawyers, whether sports fans or not, the Brown decision should be most troubling because it failed to provide a proper clarification of how antitrust law should accommodate federal labor law. The accommodation that Brown did articulate sacrificed antitrust goals to a degree unnecessary to the service of labor law goals. As explained more fully below, in order to protect established and legally approved multiemployer collective bargaining in myriad industries other than sports, the Court properly rejected the players\u27 lawyers\u27 formulation of a limited antitrust exemption that would not have protected the concerted employer action challenged in Brown. The Court, however, could have found that the challenged concerted action in Brown was not exempt from antitrust challenge under a different theory that would not have threatened multiemployer bargaining in any industry. That theory would have distinguished between joint employer actions in most industries designed to resist union efforts to use collective employee power to obtain supracompetitive wages, and those joint employer actions, as in the sports industry, unilaterally to impose restraints on free, individual employee bargaining. As a result of Brown, individuals whose special, differentiated talent would enable them to achieve extraordinary wages in a free, competitive labor market will have to make an unnecessary choice between two sets of statutory rights, those secured by federal labor laws and those secured by antitrust laws. In the near term, this choice may be imposed only on professional athletes, who both are interested in the benefits of multiemployer collective bargaining and also confront joint employer schemes to restrict their labor market. 16 In the longer term, however, the choice demanded by Brown may also unnecessarily and improperly constrain others with differentiated talent in the entertainment industry. Moreover, the Court\u27s failure in Brown to clarify the extent to which labor law requires the accommodation of antitrust law could lead to a further unnecessary expansion of the labor exemption and consequential sacrifice of antitrust goals

Defining the Economics Relationship Appropriate for Collective Bargaining

These are, of course, difficult times for those who share the goals of the framers of the original National Labor Relations Act (the NLRA or Act ) .\u27 As union density in the private sector has continued to decline2 and as the NLRA has proven helpless against the economic developments that have generated continuing employer resistance to collective bargaining, the original vision of the Wagner Congress must seem myopic and shaded with an excessively optimistic tint. Observing these economic developments and the enhanced impediments to union organization that they have posed makes it clear that only a much different statute could achieve the Act\u27s original goals. It is equally clear that the current Congress has little interest, and little cause for interest, in such a statute or, for that matter, in any goals of the Act that extend beyond providing legitimacy and stability to our industrial system. Nevertheless, economic and political winds may yet shift. Those who continue to believe that collective bargaining should have a central role in our modern capitalist economy may yet fruitfully inquire how government regulation might attempt to achieve that role. In this essay, I will contribute to that inquiry. I will do so not by attempting an analysis of the causes of union decline or by presenting a comprehensive regulatory framework that might be sufficient to arrest that decline and achieve the goals of the original Act. More modestly, I will focus on how the Act, as currently formulated and interpreted, cannot adequately respond to one particular set of economic arrangements that has offered employers inviting routes to evade collective bargaining and the basic compromise between capital and labor that the Act provides. My focus will be on peripheral or segmented employment arrangements. These include the structuring of economic relationships to treat workers as independent contractors not covered by the Act\u27s definition of employee and the leasing of employees from employment agencies that retain sufficient direct control over the work of the employees to be classified as the employees\u27 sole, or at least joint, employer. Perhaps most importantly, they include a firm\u27s subcontracting of work necessary to make its capital productive to independent firms, which are treated as the workers\u27 sole employers

ADEA Doctrinal Impediments to the Fulfillment of the Wirtz Report Agenda

Ideally, this symposium marking the three-decade anniversary of the Age Discrimination in Employment Act (ADEA) would present an opportunity to assess how well the ADEA has achieved its plausible goals. However, I recognize that any definitive assessment of the success of a statute like the ADEA, which requires the modification of the behavior of social actors, must depend on the kind of sophisticated empirical study for which I have neither the time, resources or capability. I also recognize that defending my identification of the goals of the ADEA might itself require an entire essay

Using the Anglo-American Respondeat Superior Principle to Assign Responsibility for Worker Statutory Benefits and Protections

When viewed flexibly, not to find doctrinal rules, but rather to find insight from judges’ collective judgment on social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefitted by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. This rationale is based on the appropriateness of cost internalization where there is an alignment of worker duties with employer interests. It presents a socially compelling reason for assigning responsibility for workers’ benefits and protections to an employing entity, or entities, with aligned interests, rather than to the workers or to the general society. While statutory protections and benefits should be based on worker need, the alignment of worker duties with employer interests provides a critical principle of economic fairness for assigning responsibility for the protections and benefits. Where workers do not have sufficient control over economic resources to work in their own independent interests, rather than in line with those of some employer or employers, they are in a position of greater need than those workers who do have such control. Furthermore, in the absence of such resource control, their duties will be aligned with the interests of employers that presumptively should be responsible for the protections and benefits offered by modern employment statutes. This essay elaborates how the principle, which is expressed in the Restatement of Employment Law, applies to some difficult questions in the modern economy, including the treatment of workers employed by digital platforms and those with multiple potential employers

A Framework for the Rejuvenation of the American Labor Movement

Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century, held at the Indiana University School of Law-Bloomington