COLLECTIVE BARGAINING IN THE NFL: LOOKING AHEAD TO THE EXPIRATION OF THE CURRENT CBA IN 2020 Kaitlyn O’Boye INTRODUCTION “I just want like $80 million.” Todd Gurley, Los Angeles Rams Running Back.1 A number of professional players, such as Todd Gurley feel aggrieved by the NFL in regards to their compensation. This may seem absurd, since NFL players make a considerable amount of money, especially a player of Todd Gurley’s caliber. In reality, NFL players are paid less than 50% of the league’s total revenue. Although some of these players are making millions of dollars per year, the team owners enjoy significantly higher compensation than the individuals on the field, who are, arguably, the reason that the industry is so profitable. One commentator has compared the two as follows: “well- heeled owners and tattoo laden athletes, or billionaires versus millionaires, respectively.”2 Despite significant declines in labor organizations nationwide3, the National Football League Players’ Association (“NFLPA”) has endured. Potentially undermining the NLFPA’s power, the Eighth Circuit handed down an opinion in 2011 that severely limits the players’ use of antitrust law as a weapon to gain leverage in negotiating a collective bargaining agreement with the NFL. Part I of this article outlines the background of antitrust law in professional football. The first portion outlines some of the restrictive practices that the NFL has in 1 Adam Wells, Todd Gurley Says Players Must Prepare for NFL Lockout in 2021, BLEACHER REPORT (July 20, 2018), https://bleacherreport.com/articles/2787001-todd- gurley-says-players-must-prepare-for-nfl-lockout-in-2021 2 Allen R. Sanderson, In Defense of New Sports Stadiums, Ballparks, and Arenas, 10 MARQ. SPORTS L. J. 173, 177 (2000) (discussing the financing of new professional sports franchise locations). 3 See Keith N. Hylton, Law and the Future of Organized Labor in America, 49 WAYNE L. REV. 685, 687 (2003) (discussing the decline in labor organizations and projecting the future of organized labor in the private sector). 2 place, transitioning into two of the major reasons why the NFL is permitted to employ these restrictive practices: the statutory and non-statutory labor exemptions from antitrust scrutiny enjoyed by the league and the history of those exemptions in the market of professional football. This article also discusses current points of contention between the NFL and the union as the expiration of the current collective bargaining agreement will follow the 2020 season. Despite a history riddled with labor strife between the parties, the union has survived, although labor organizations nationwide have declined. Lastly, this article focuses on the Eighth Circuit’s interpretation of the Norris- LaGuardia Act and provides an alternative interpretation that would have allowed players, at a minimum, to pursue an antitrust lawsuit after decertifying the NFLPA as the players’ exclusive bargaining representative. I. BACKGROUND A. Antitrust law in professional football In 1890, Congress passed the Sherman Antitrust Act4, which is generally where federal antitrust law comes from. In 1914, Congress amended the Sherman Act, enacting the Clayton Act,5 further refining antitrust law. Section 1 of the Sherman Act prohibits contracts that restrain trade or commerce.6 It states in relevant part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or 4 Sherman Antitrust Act of 1890, ch. 647, § 1, 26. Stat. 209 (codified as amended 15 U.S.C. §§ 1-7). 5 Clayton Antitrust Act of 1914, Pub. L. 63-212, 38 Stat. 730 (codified as amended 15 U.S.C. §§ 12-27, 29 U.S.C. §§ 52-53). 6 15 U.S.C. § 1. 3 commerce among the several States, or with foreign nations, is declared to be illegal.”7 Typically, an action brought challenging restrictive practices in a contract governing a labor market will be brought under Section 1 of the Sherman Act. Courts analyze an alleged antitrust violation under either the “per se rule” or “the rule of reason”. Examples of per se violations are horizontal territorial restraints, group boycotts, price fixing, among others. U.S. v. Topco Associates, Inc., 405 U.S. 596, 608- 612 (1972). These violations are inherently anticompetitive and damaging to the market; an offender will be held liable with evidence that the anticompetitive conduct actually occurred. Alleged antitrust violations that do not fall into the category of per se violations are analyzed under the Rule of Reason. When a court establishes that the challenged policy or practice has anticompetitive effects, the court will balance the restraint with the procompetitive benefits of the practice or policy. Ohio v. American Express Co., 138 S.Ct. 2274, 2284 (2018). The per se analysis and the rule of reason analysis are mutually exclusive. The NFL is no stranger to antitrust litigation. From its inception, there have been a number of player restraints that would not survive antitrust law scrutiny in most markets. In 1957, William Radovich, an offensive lineman that played for the Detroit Lions, brought an action under § 4 of the Clayton Act challenging some of these player restraints.8 The Supreme Court had to determine whether or not the antitrust exemption 7 Id. 8 See Radovich v. Nat’l Football League, 352 U.S. 445, 446 (1957) (holding that the NFL is subject to the Sherman Act and plaintiff had a cause of action when he was blacklisted from the NFL). 4 recognized in professional baseball9 applied to professional football. The court held that the baseball exemption did not apply and Radovich sufficiently alleged an unreasonable restraint of trade that caused him harm to state a cause of action under the Sherman Act.10 The court held that “the volume of interstate business involved in organized professional football places it within the provisions of the Act.”11 Despite this application of the federal antitrust laws to the NFL, there are still a number of policies and practices within the NFL that restrain trade and restrain player movement from club to club. The NFL places restraints on its labor market of professional football players by restricting players from marketing their services freely and moving from team to team. The NFL also restricts the product market of professional football through its monopoly of broadcasting games. With the blessing of the Supreme Court, players have challenged these restrictions on the labor market and the product market. Free Agency Throughout the history of professional football, the limitations placed on player free agency, ultimately restricting the professional football labor market, have come under fire as being an unreasonable restraint of player movement.12 Extensive litigation and controversy has ensued between football players and the NFL regarding whether or not limitations on free agency constitute an antitrust law violation. The concept of free 9 See Federal Baseball Club of Baltimore v. Nat’l League of Professional Baseball Clubs, 259 U.S. 200, 209 (1922) (holding player restrictions did not interfere with interstate commerce so the Sherman Act did not apply). 10 See Radovich, 352 U.S. at 453. 11 See Id. at 452. 12 See Scott E. Backman, NFL Players Fight for their Freedom: the History of Free Agency in the NFL, 9 SPORTS LAW J. 1, 2 (2002) (discussing the history and turmoil of labor relations between the NFL and the NFL players). 5 agency has changed and evolved over the years in response to this litigation and controversy.13 This paper refers to player movement among teams in the league as free agency. Although some players are permitted to freely move from club to club, the NFL’s free agency system prohibits all players from doing so and consequently restrains competition in the labor market. After the parties entered into the 1993 collective bargaining agreement, free agency evolved into different types of free agents, depending on how many seasons a player has been in the NFL.14 After four years in the league, players become unrestricted free agents and have the ability to negotiate freely to sign a contract with a team of that player’s choice; the team is not penalized for entering into negotiations with that player, so long as the team has room for the player under its salary cap.15 Unrestricted free agency is not a restraint of competition in the labor market of professional football players, but only players that have played in the league for four years are eligible. Although unrestricted free agency allows players to market their services and provides the freedom to move from team to team, players who are not eligible for unrestricted free agency are restricted from marketing their services and freely moving from team to team, which restrains competition in the labor market of professional football. Not all players in the NFL are free to negotiate with any team whenever they want. For example, a team has the power to designate a player as a franchise player or transition player, which protects a team against the threat of losing its best player.16 The 13 Details of the evolution of free agency is discussed infra. 14 See Backman, supra, at 44. 15 See id. at 17-19 16 See id. 6 tag prevents a player from negotiating with another team, or in the alternative, provides compensation if another team signs that player. This limitation restricts player movement in the league and restrains competition in the labor market. Further, after three years in the league, a player is deemed a restricted free agent and the team carries a right of first refusal to match an offer made to the player by another team.17 Players who have been in the league for less than three years are exclusive rights free agents and cannot negotiate with other teams unless their current team does not offer that player a minimum salary.18 Unrestricted free agency, like the franchise tag, also constitutes a restraint on competition in the market of professional football players.