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Posted at 03:38 PM ET, 05/03/2011

The NFL lockout and unionism

As any number of commentators have pointed out, the current work stoppage in the National Football League actually began in 2008, when the owners chose to opt out of the collective bargaining agreement by giving notice. This freed the owners, as a group, to “lock out” the players — in effect, to cease paying or training them — once we reached the end of the 2010 season and the notice period expired. The players, of course, promptly decertified their union, allowing them to sue the owners for violating the antitrust laws — and this is where things get legally tricky.

Antitrust law is often poorly understood by the general public. The laws do not prohibit bigness or wealth or power. They prohibit certain forms of collusion. The players, in their lawsuit, are effectively accusing the team owners of colluding by engaging in such practices as the draft, the salary cap, and the restrictions on free agency.

When a collective bargaining agreement is in place, the parties are for the most part immune from antitrust scrutiny as long as they are acting in accordance with the agreement. (This exemption was created by the courts, not the Congress.) So, for example, a collectively bargained salary cap would not violate the antitrust laws; a salary cap imposed by owners in collusion with each other might.

True, as long as the owners have bargained in good faith, and as long as a “bargaining relationship” exists, they are free to implement terms that were “reasonably comprehended” in their last, best offer. This the Supreme Court decided in Brown v. Pro Football (1996), a case arising from the 1987 work stoppage. Thus, as part of the antitrust suit, the players accuse the owners of bargaining in bad faith.

Now we come to the part of the story that has not received adequate attention. Just as the antitrust laws prohibit the owners from colluding with respect to salary and working conditions, they also prohibit the players, in the absence of a union, from certain forms of collusion. Most of the usual activities of labor unions are exempt by statute from the antitrust laws. But the exemptions vanish when the union does.

This is why the contention of the owners that the decertification of the union is a sham is not ridiculous. The players may choose to have a union or not to have a union. They may not choose to say they have no union while behaving as if they do. If the players, absent a union, engage in acts of collusion, they may risk running afoul of the very antitrust law that to which they are appealing, quite properly, to rein in the owners. And, of course, if the decertification is ruled a sham, then the players will lose their lawsuit, and the lockout will stay in place.

By Stephen L. Carter  |  03:38 PM ET, 05/03/2011

Tags:  NFL, Stephen L. Carter

 
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