The Senate recessed yesterday without an antitrust exemption bill for professional sports being introduced, despite intense lobbying by the National Football League.
One of the immediate effects of the proposed legislation would be to extricate the NFL from the Oakland Raiders' lawsuit now being retried in Los Angeles.
A spokesman for Senate Majority Leader Howard Baker (R-Tenn.) said that although Baker favors an antitrust exemption, he would not support a bill that included a retroactivity clause. "He is not supportive of something that would impact on the Al Davis lawsuit," the spokesman said. "If that's what is in the draft, he would have some problems with it."
The spokesman said Baker had not seen any drafts of the proposed legislation and had no intention of introducing it when the Senate comes back in session April 13.
Sources said the NFL failed to get the bill introduced for several reasons: intense lobbying by the NFL Players Association and players unions in other sports; adverse publicity; and a crowded Senate calendar that included hearings on another controversial antitrust bill--which did not directly involve sports, but did involve the issue of retroactivity.
Ed Garvey, the executive director of the NFLPA, said, "I think it became such a hot potato that they had trouble finding a sponsor."
Sen. Alan Simpson (R-Wyo.) said he is "rather supportive of the legislation" and thinks there is "a special need to take a special look at the situation," but does not intend to sponsor the legislation.
An aide of Sen. Dennis DeConcini (D-Ariz.), who had been regarded as a potential sponsor, said he would not introduce legislation this week. A spokesman for Sen. Howell Heflin (D-Ala.) said he had no plans to introduce the legislation, although he might cosponsor it.
Garvey said senators opposing the legislation included Lowell Weicker (R-Conn.), Bill Bradley (D-N.J.) and Howard Metzenbaum (D-Ohio).
The NFLPA believed that proponents of the legislation would attempt to rush the bill through Congress, perhaps as a rider, without hearings.
Weicker, Bradley and Metzenbaum wrote letters to Baker and Sen. Robert Byrd (D-W. Va.), the minority leader, saying they would not give their consent to allow the bill to go directly to the floor, which meant that they would have to be notified if it were attached as a rider.
Paul Tagliabue, a lawyer for the league, said, "Any suggestion that we were trying to get legislation through the Senate without hearings is totally false . . . The expectation of the league always has been that there would be hearings with a full review of the merits."
The issue first became public last December, when NFL Commissioner Pete Rozelle testified before the subcommittee on monopolies and commercial law of the House Judiciary Committee that the league needed an antitrust exemption. NFL teams, he said, "are partners acting together in a common enterprise."
The league also argues that without an exemption, expansion is difficult, because under antitrust laws, the league can be sued by cities and persons not receiving franchises.
The league currently is involved in two antitrust lawsuits --the Davis suit and the one brought by the former owners of the World Football League franchise in Memphis, which has not yet gone to trial. He said these suits involve $150 million in potential liabilities.
In January, in an interview in the Memphis Commercial Appeal, Baker said he believed Memphis had "the best chance of any city in the country" to get an NFL franchise. He also said he supported legislation for an antitrust exemption, but that the two issues were separate.
The interview, Garvey said, was the union's first indication of the strength of support for the bill in the Senate.
On March 25, Rozelle admitted that the NFL was using the lure of expansion to win congressional support for the legislation. "If that's dangling," he said, "then it's dangling."
Joseph Alioto, Davis' attorney, responded by asking the Senate Ethics Committee to investigate. "If they don't act and put those people under oath, we'll file a civil suit alleging that they were trading a Memphis franchise for Baker's vote and we'll put them under oath," Alioto said.
In a letter dated March 25 to Sen. Malcolm Wallop (R-Wyo.), chairman of the Select Committee on Ethics, Baker reiterated that there was no connection between his support for both an NFL franchise in Memphis and antitrust legislation.
Union representatives believe the antitrust legislation, as written in draft form, would give the league an antitrust exemption so broad that the NFL would, for example, have the right to negotiate pay television contracts as a single entity without getting a special exemption. The NFL had to get a special exemption to negotiate with the television networks as a single entity in 1961.
They also say the bill has the potential to make it impossible for players to sue under antitrust laws over issues such as the draft, reserve rules and option clauses. Most of the players' gains on these issues have come through the courts as a result of suits brought under antitrust laws.
Tagliabue said the league was not asking for any expansion of the authority it was granted in 1961. "Under this bill, the players would have any and all antitrust rights they have now," he said.
Tom Jorde, a professor of antitrust law at the University of California at Berkeley, said, "Sports franchises are different from traditional manufacturing concerns in that they require a degree of cooperativeness to produce the high quality product, namely sports entertainment."
But he argues that this special status is "not sufficient justification for a complete exemption from the antitrust laws," and says these laws can be applied to the sports industry in a sensitive manner "by employing rule-of-reason standards that the courts have already developed."
Jorde says that there is an inequity regarding exemptions in professional sports, because baseball received a complete antitrust exemption from the Supreme Court in 1922--an exemption that other sports do not have. But he said the way to remedy that inequity is to have Congress repeal the exemption for baseball rather than to provide an exemption for all sports.
"The problem with an exemption is that it provides a monopoly to the league--and therefore monopoly profits to be divided between owners and players--and deprives consumers of any protection under the antitrust laws," he said.