Opposition Brief — Brown v. Pro Football, Inc.

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\ Supreme Court, U.S.

No. 95-388 FILED

In The NOV 13 1995

Supreme Court of the Bnited itnteg’ md

OCTOBER TERM, 1995

ANTONY BROWN, et ai.,

Petitioners,

Vv.

PRO FOOTBALL, INC.,

d/b/a WASHINGTON REDSKINS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

HERBERT DYM

GREGG H. LEVY*

SONYA D. WINNER

ROBERT A. LONG, JR.

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 662-6000

Counsel for Respondents

November 1995 * Counsel of Record

‘BEST AVAILABLE COPY Saunt:

QUESTION PRESENTED

Whether members of a multiemployer bargaining unit

are subject to antitrust liability to their employees for

exercising, during the collective bargaining process, rights

afforded them by the federal labor laws with respect to terms

and conditions cf employment.

(i)

PARTIES TO THE PROCEEDING

AND RULE 29.6 LISTING

only corporate respondents with a parent company are

Houston Oilers, Inc. (KSA Industries, Inc.) and Pro-Football,

Inc. (Jack Kent Cooke, Incorporated). The only corporate

respondents with a nonwholly owned subsidiary are

Indianapolis Colts, Inc. (Colt Center Company) and Minnesota

Vikings Football Club, Inc. (Minnesota Vikings Ventures,

Inc.).

TABLE OF CONTENTS

Page

ne ag wb 8 1

BES > tae GO AS te ae 2

hee eres Oe 2

REASONS FOR DENYING THE WRIT .......... 7

I. THERE IS NO CONFLICT AMONG THE

COURTS OF APPEALS OR WITH PRIOR

DECISIONS OF THIS COURT .........-.---; 9

Il. THE COURTS OF APPEALS HAVE

CORRECTLY CONCLUDED THAT THE

NONSTATUTORY LABOR EXEMPTION

APPLIES TO RESTRAINTS

IMPLEMENTED THROUGH THE

COLLECTIVE BARGAINING PROCESS

THAT DO NOT ADVERSELY AFFECT

A PRODUCT MARKET ........-:.-----: 18

Ill. THE QUESTION PRESENTED HAS NOT

ARISEN OUTSIDE PROFESSIONAL

SPORTS, AND 2 FCENT EXPERIENCE

DEMONSTRA IES THAT THE COLLECTIVE

BARGAINING PROCESS HAS NOT BEEN

ADVERSELY AFFECTED BY THE

DECISIONS OF THE COURTS OF

DO GS er a ee ee 24

ot ee ee ee ee 28

(iii)

TABLE OF AUTHORITIES

Cases

Page

Allen Bradley Co. v. Local 3, International

Brotherhood of Electric Workers, 325 U.S.

Fat MEE CN ok Cai ee ea CK CAKES SS 13

Amalgamated Meat Cutters Local 576 v. Wetterau

Foods, Inc., 597 F.2d 133 (8th Cir. 1979) ..... 11

American Ship Bldg. Co. v. NLRB, 380 U.S.

DIS io Sareea ieee aes 4, 17, 19, 20

Caldwell v. American Basketball Ass’n, 66 F.3d

S33 G6 Ce. TH Ee as CR EER S passim

Charles D. Bonanno Linen Service, Inc. v.

NLRB, 454 U.S. 404 (1982) ......... 20, 21, 22

Connell Construction Co., Inc. v. Plumbers &

Steamfitters Local No. 100, 421 U.S. 616

Gl . és) 794 OA ee 13, 16, 18

Continental Maritime of San Francisco, Inc. v.

Pacific Coast Metal Trades District

Council, 817 F.2d 1391 (9th Cir. 1987) ....... 12

Cordova v. Bache & Co., 321 F. Supp. 600

Ce a a ee aes © 66 02 23

First National Maintenance Corp. v. NLRB, 452

ee I a Ne a a a ee ee ok G 20

Flood v. Kuhn, 407 U.S. 258 (1972) ........... 27

Fort Halifax Packing Co. v. Coyne, .

. Sf 2S. RRR ee rr ara 16

In re Detroit Automobile Dealers Ass’n, 955

F.2d 457 (6th Cir.), cert. denied, 113

i Ge Ss 6 ok eee ei we Oe 12

J.I. Case Co. v. NLRB, 321 U.S. 332 (1944) .... 14, 15

Livadas v. Bradshaw, 114 S. Ct. 2068 (1994) ...... 16

Local 189, Amalgamated Meat Cutters v. Jewel

Tea Co., 381 U.S. 676 (1965) ............. 13

Lodge 76 International Ass'n of Machinists

v. Wisconsin Employment Relations

Comm'n, 427 U.S. 132 (1976) .............. 21

Mackey v. National Football League, 543 F.2d

606 (8th Cir. 1976), cert. dismissed, 434

Us Be ere COUWER eh Ha Bae ates 9, 10, 11

McCourt v. California Sports, Inc., 600 F.2d

EROS Ga Gah; Sees 6 Se aid PU hw R Es 0 12

McNeil v. National Football League, 790 F.

Supp. 871 (D. Mine: 1992) 6. ee ce ee 10

Metropolitan Life Insurance Co. v.

Massachusetts, 471 U.S. 724 (1985) ......... 16

Mid-America Regional Bargaining Ass'n v.

Will County Carpenters, 675 F.2d 881 (7th

Cir.), cert. denied, 459 U.S. 860 (1982)....... 19

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.

£75 CISC). 9 Pie 8 KR a eG HW 14

NLRB v. Insurance Agents’ Int’l Union, 361 :

paps et CE lk he hi ke 4 CORE HOSS 8 20

NLRB v. Katz, 369 U.S. 736 (1962) ............ 21

NLRB v. Truck Drivers Local 449 ("Buffalo

Lioen"), 353 Git. ST GIBGF) kere ae Ne 18, 19

National Gerimedical Hospital & Gerontology

Ctr. v. Blue Cross, 452 U.S. 378 (1981) ...... if

Newspaper Drivers & Handlers’ Local 372 v.

NLRB, 404 F.2d 1159 (6th Cir. 1968), cert.

denied, 395 U.S. 9Z3 (ISG)... We ee is 8 12

North Am. Soccer League v. NLRB, 613 F.2d

1379 (Sth Cir.), cert. denied, 449 U.S. 899

(SSG. ENSUE Sal chats aces 22

National Basketball Ass'n v. Williams, 857 F. Supp.

1069 (S.D.N.Y. 1994), aff'd, 45 F.3d 684

(2d Cir. 1995), petition for certiorari

filed (U.S. July 24, 1995 (No. 95-137). ..... passim

Powell v. National Football League, 930 F.2d

1293 (8th Cir. 1989), cert. denied, 498

UB. MCD Cea es cia Tia he wide Be CX passim

Prepmore Apparel, Inc. v. Amalgamated Clothing

Workers, 431 F.2d 1004 (Sth Cir. 1970),

cert. dismissed, 404 U.S. 801 (1971) ......... 11

Richards v. Neilsen Freight Lines, 810 F.2d

Gam Cee Gare BOE . 0.0 gd vo oe. 5 ITS oes 12

San Diego Building Trades Council v. Garmon,

Soe UB. aoe Chee Ao ek oS ta a FB US 17

Scooper Dooper, Inc. v. Kraftco Corp., 494

F.28 O60 Ge Ce. Were ©. SOURS. Fee 19

Silver v. New York Stock Exchange, 373 U.S.

ot Be ee ee OR ee 14

Silverman v. Major League Baseball pin

Relations Committee, Inc., 1995 WL 574780

ak Ls Re | Feo 8 15, 25, 27

United Brotherhood of Carpenters Local 1846 v.

Pratt-Farnsworth, Inc., 690 F.2d 489 (Sth

Cir. 1982), cert. denied, 464 U.S. 932

eT SON Bait rtdaniecs ten 11

United Mine Workers v. Pennington, 381 U.S.

OST (EG ORO. Bake trae 13

Wood v. National Basketball Ass’n, 809 F.2d

SSOUE Ce. TOG7). .. SSSI OL. 2 ONE as 23, 25

vii

Statutes

Civil Rights Act of 1964, 42 U.S.C. § 2000e

ff. re ar ee ee eee is

Fair Labor Standards Act, 29 U.S.C. § 201

ff Pre a soe eae eee 14

National Labor Relations Act, 29 U.S.C. §§ 151

fr eee ero le’ oe eee ee 2

Se Oe ED be xen ececoeseteresaeas 2

yD nn er ee see 16

y RR eee ee a ee a 15

a o, ea cy eR OO RAO ee 8 15

Miscellaneous

David Aldridge, League And Its Players Union

Can Hardly Wait To Talk Deal, Washington

Post, November 1, 1995, atC4 ............ 26

In The

Supreme Court of the Anited States

OCTOBER TERM, 1995

No. 95-388

ANTONY BROWN, et al.,

Petitioners,

Vv.

PRO FOOTBALL, INC.,

d/b/a WASHINGTON REDSKINS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-60a) is

reported at 50 F.3d 1041. The opinion of the district court

(Pet. App. 64a-92a) is reported at 782 F. Supp. 125.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

March 21, 1995. A petition for rehearing was denied on

June 12, 1995. The petition for a writ of certiorari was filed

on September 1i, 1995. The jurisdiction of this Court is

invoked pursuant to 12 U.S.C. § 1254(1).

STATEMENT

1. Respondents, member clubs of the National Football

League (NFL), are members of a multiemployer collective

bargaining unit. Petitioners are members of the National

Football League Players Association (NFLPA), the union

certified as the exclusive bargaining representative of all NFL

players. The subject matter of this litigation — the salaries of

players eligible in 1989 to practice with NFL clubs but not to

play in games — is a mandatory subject of collective

bargaining under the National Labor Relations Act, 29 U.S.C.

§§ 151 ef seq.

In March 1989, as part of a series of roster reforms, the

NFL authorized each member club to create a Developmental

Squad, a group of six rookie or "first-year" players who

would be permitted to practice with the club but not to play in

games. To ensure that the most promising eligible players

were not stockpiled or "stashed" by certain clubs on

Developmental Squads, where they would be unavailable to

other clubs needing their services in games, the NFL’s

authorizing resolution anticipated that all such players would

be paid a uniform salary.

The NFL promptly sought to negotiate with the NFLPA

terms and conditions of employment for Developmental Squad

members. The NFLPA steadfastly refused to agree to a

uniform salary. After four months of good faith efforts to

resolve the issue and with the parties plainly at impasse, the

NFL unilaterally implemented its pre-impasse bargaining

proposal, i.e. , that each Developmental Squad member be paid

$1,000 per week, slightly less than the collectively bargained

minimum salary for regular roster players. During the 1989

season — the only season at issue — 236 Developmental

Squad members were each paid $1,000 per week for their

practice services.

2. In May 1990, petitioners filed this lawsuit alleging

that the NFL’s implementation of the uniform salary term

violated Section 1 of the Sherman Act.

In June 1991, after a class had been certified, the district

court (Lamberth, J.) granted plaintiffs’ motion for partial

summary judgment, and denied the NFL’s cross-motion, on

the issue presented here: whether plaintiffs’ claims were

barred by the nonstatutory labor exemption from the antitrust

laws. The district court held that implementation of the

uniform salary term was not protected from antitrust

challenge; it concluded that the exemption (1) had ended upon

expiration of the previous collective bargaining agreement

between the NFL and the NFLPA, (2) had ended when the

parties reached impasse on the uniform salary issue, or (3) did

not apply because the challenged restraint had not previously

been embodied in a collective bargaining agreement. Pet.

App. 72a-90a.'

' The district court subsequently granted plaintiffs’ motion for partial

summary judgment, holding, under the rule of reason, that implementation

of a uniform salary term violated Section 1 of the Sherman Act as a matter

of law. Pet. App. 110a-114a. The damages issue was then tried to a jury,

which was repeatedly told that the NFL had violated the antitrust laws.

The jury returned a verdict that, after trebling, resulted in a judgment

against the NFL of more than $30 million.

3. a. Thecourt of appeals reversed. Pet. App. 1a-60a.

Chief Judge Edwards’ opinion for the court recognized that by

implementing a collective bargaining proposal that had been

negotiated in good faith to impasse, the NFL was exercising

a fundamental labor law right. The court observed that this

Court’s precedents had "made clear that an employer’s right

to ‘institute unilaterally the working conditions which he

desires’ is among the lawful ‘tools of economic self-help’

available to be utilized as a tactic in collective bargaining."

Id. at 23a (quoting American Ship Bldg. Co. v. NLRB, 380

U.S. 300, 316 (1965)). The court therefore determined that

the NFL had been held liable under the antitrust laws for

doing “exactly what federal labor policy condones.” Pet.

App. 5a.

For that reason, and because the uniform salary term had

no anticompetitive impact on the market for the League’s

entertainment product, id. at 29a & n.8, the court of appeals

held that the NFL is “exempt from Sherman Act liability in

this case." Jd. at 32a. The court of appeals determined that

restraints on competition lawfully imposed through the

collective bargaining process are exempted from antitrust

liability so long as such restraints primarily affect only

the labor market organized around the collective

bargaining relationship. Thus, employees confronted with

actions imposed lawfully through the collective bargaining

process must respond not with a lawsuit brought under the

Sherman Act, but rather with the weapons provided by

the federal labor laws.

Pet. App. 4a-5a.

In reaching that conclusion, the court of appeals

recognized that although the antitrust laws may apply to

restraints on competition in non-unionized labor markets, “the

Ee -

inception of a collective bargaining relationship between

employees and employers irrevocably alters the governing

legal regime. .. . [OJnce collective bargaining begins, the

Sherman Act paradigm of a perfectly competitive market

necessarily is replaced by the NLRA paradigm of organized

negotiation — a paradigm that itself contemplates collusive

activity on the parts of both employees and employers." Pet.

App. 24a-25a.

In addition, reacting to petitioners’ suggestion that such

"routine practices of multiemployer bargaining violate the

antitrust laws," Pet. App. 26a, the court reasoned:

If the Players had been negotiating with a single football

team (instead of the multi-employer group), there is no

doubt whatsoever that that single employer lawfully could

have taken unilateral action to impose a fixed salary for

practice team players after bargaining in good faith to a

point of impasse. Indeed, the players do not assert

otherwise, for they recognize that this is standard fare in

labor law. And nothing in the antitrust law is intended to

proscribe such unilateral action by a single employer. So

the heart of the Players’ position appears to be that the

presence of a multi-employer bargaining unit should make

a difference under the antitrust law. This is a wholly

untenable position... .

Pet. App. 25a. See also id. at 25a-28a (discussing precedents

and legislative history).

In holding that “restraints on competition imposed through

the collective bargaining process [are exempt], so long as such

restraints operate primarily in a labor market characterized by

collective bargaining," Pet. App. 29a, the court of appeals

expressly agreed with decisions of the Eighth Circuit and the

Second Circuit that had previously so held. Pet. App. at 21a-

22a, 25a-28a (citing Powell v. National Football League, 930

F.2d 1293 (8th Cir. 1989), cert. denied, 498 U.S. 1040

(1991), and National Basketball Ass’n v. Williams, 45 F.3d

684 (2d Cir. 1995), petition for cert. filed (U.S. July 24,

1995) (No. 95-137)).?

b. Judge Wald dissented. Pet. App. 34a-60a.

Recognizing that the majority’s decision was supported by

decisions of the Eighth and Second Circuits, she nonetheless

began with the premise that "[pjrecedent is of limited

assistance" in deciding the issue. Pet. App. 45a. She

expressed the view that the majority’s decision would allow

employers to "impose labor market restraints that heretofore

might have exposed them to antitrust liability" and would

thereby "create{[] mew asymmetries in _ bargaining

relationships." Pet. App. 46a, 49a.

Judge Wald joined the majority in recognizing that the

nonstatutory labor exemption does embrace "multiemployer

bargaining tactics" to which the union has not agreed,

including actions by members of a multiemployer bargaining

unit to lock out their employees. Pet. App. 53a n.7. She

nonetheless proposed a rule — different from the respective

rules urged by petitioners and the government here — that

would exclude from the scope of the exemption "unilateral

imposition of terms at impasse" even though, as she

acknowledged, such employer actions "sometimes have tactical

significance." Pet. App. 57a (emphasis in original).

2 Because the nonstatutory labor exemption issue was "dispositive,"

Pet. App. 9a, the court of appeals determined that it did not need to

address the NFL’s challenges to the Section 1 ruling or the damages issues.

Id. at 4a.

inalienable

Judge Wald would, in any event, have reversed the

judgment and remanded on the ground that the district court

had erred in granting summary judgment to petitioners under

the antitrust rule of reason issue. Pet. App. 36a n.3.

c. The court of appeals denied rehearing en banc, over

Judge Wald’s dissent. Pet. App. 62a-63a.

REASONS FOR DENYING THE WRIT

Petitioners urge review by this Court principally on the

ground that "the courts of appeals are sharply divided" over

the question presented here, and that the decision below

"represents a radical departure from the established test

applied by the other circuits." Pet. 14. Petitioners are

wrong, as the government’s amicus brief expressly confirms.

U.S. Br. 11.

The Solicitor General acknowledges that in 1991, when

this Court declined to review the Eighth Circuit’s decision in

Powell,? "there was no conflict among the circuits on the

precise issue presented." U.S. Br. 11. The Solicitor General

also candidly admits that "[s]ince Powell, no conflict in the

circuits has developed." Jd. Indeed, as the government

correctly recognizes, "the D.C. Circuit [in this case] and the

Second Circuit [in Williams] have agreed with the Eighth

Circuit [in Powell] that conditions of employment unilaterally

imposed on unionized employees [through the exercise of

labor law rights] by multi-employer associations may not be

challenged under the antitrust laws." U.S. Br. 11. See

Williams, 45 F.3d at 692 ("We thus agree with the decision in

Powell"); Pet. App. 21a (same).

3 See Powell v. National Football League, 930 F.2d 1293 (8th Cir.

1989), cert. denied, 498 U.S. 1040 (1991).

Although the government continues to take issue with this

consistent line of holdings, the D.C. Circuit and the Second

Circuit, like this Court when it declined to review the Eighth

Circuit’s decision in Powell, had before them the

government’s briefs urging a different result. In each case,

the government’s position was rejected — not cavalierly, but

rather with extended, thoughtful, and analytical opinions, each

consistent with and reinforcing the others, by distinguished

jurists with substantial experience in the governing areas of

law.‘

None of the arguments advanced in support of the petition

warrants immediate review. The issue presented, which has

received thoughtful treatment from three courts of appeals that

have all reached the same result, has arisen only rarely, and

not at all outside the specialized area of collective bargaining

between professional sports leagues and their players. Recent

experience confirms that the decisions of the courts of appeals

have not adversely affected the collective bargaining process.

And the courts of appeals have rejected the “dizzying array"

of alternative proposals — "not one of [which] makes the

slightest sense under established labor law principles" -~—

offered by petitioners, the government and _ various

com:aentators who favor excluding from the exemption one or

more aspects of the collective bargaining process. Pet. App.

20a, 21a. Unless and until a conflict among the circuits

results from these varied proposals, review by this Court is

unwarranted.

* The Second Circuit’s unanimous opinion in Williams, for example,

was written by Judge Winter and joined by Judges Pratt and Calabresi.

Judges Meskill and McGlaughlin joined Judge Winter in the Second

Circuit’s recent unanimous decision in Caldwell v. American Basketball

Ass'n, 66 F.3d 523 (2d Cir. 1995), which reached the same result. Chief

Judge Edwards wrote the opinion for the court below, in which Judge

Randolph joined.

I. THERE IS NO CONFLICT AMONG THE

COURTS OF APPEALS OR WITH PRIOR

DECISIONS OF THIS COURT.

A. Petitioners’ primary argument (Pet. 3-5, 14-20) is that

the courts of appeals are in conflict on the question whether

union consent to a challenged restraint is necessary for the

nonstatutory labor exemption to apply. As the Solicitor

General recognizes (U.S. Br. 11), there is no such conflict.

Although several courts of appeals have considered whether a

union-employer agreement is sufficient for the exemption to

apply, every court of appeals to rule on the question presented

here — whether a union-employer agreement is necessary —

has rejected petitioners’ position. See Powell v. National

Football League, 930 F.2d 1293, 1298 (8th Cir. 1989), cert.

denied, 498 U.S. 1040 (1991); National Basketball Ass'n v.

Williams, 45 F.3d 684 (2d Cir. 1995), petition for cert. filed

(U.S. July 24, 1995) (No. 95-137); Caldwell v. American

Basketball Ass’n, 66 F.3d 523 (2d Cir. 1995).°

Petitioners rely principally on Mackey v. National

Football League, 543 F.2d 606 (8th Cir. 1976), cert.

dismissed, 434 U.S. 801 (1977). Indeed, they use the phrase

(Pet. 18) "Mackey circuits" to refer to circuits that assertedly

are in conflict with the D.C. Circuit’s decision below, even

though the circuit in which Mackey was decided has rejected

petitioners’ position.

5 Petitioners’ counsel of record perceived no such conflict when,

urging review and reversal of the Eighth Circuit’s decision in Powell, as

Solicitor General he informed this Court that Powell “does not conflict with

any decision of this Court, nor is there a conflict in the circuits." Brief for

the United States, No. 89-1421, at 17. Here, however, relying principally

on cases decided prior to Powell, he asserts a conflict that warrants this

Court’s review.

In Mackey, the Eighth Circuit considered whether the

nonstatutory labor exemption applied to restraints in a

collective bargaining agreement; the issue presented there was

whether union agreement was sufficient to require application

of the exemption. Mackey did not consider whether an

agreement was necessary for the exemption to apply. In its

subsequent opinion in Powell, the Eighth Circuit made that

absolutely clear: “Our discussion in Mackey was couched in

terms of ‘agreements’ because in that case we were presented

with [restraints] incorporated by two bargaining agreements."

930 F.2d at 1298.

In Powell, the Eighth Circuit held that the non-statutory

labor exemption shielded from antitrust liability not only terms

and conditions of employment that had been part of an expired

collective bargaining agreement, but also additional terms

(known as "Plan B") that the NFL, consistent with its rights

under the labor laws, had implemented without union

agreement after bargaining in good faith to impasse. See

Powell, 930 F.2d at 1303 n.10. The Eighth Circuit ruled in

Powell that agreement on the challenged restraint was not

necessary, holding that after impasse the exemption protects

from antitrust challenge a “unilateral change in terms and

conditions of employment." Powell, 930 F.2d at 1302; see id.

at 1300-01 (the exemption applies to "new or different

employment terms that [were] reasonably contemplated within

the scope of their pre-impasse proposals").° In short, as the

1421, at 3 (In addition to the restraints “originally contained in a now

expired collective bargaining agreement, . . . NFL owners have gone even

further and unilaterally agreed to implement a new anticompetitive system

called ‘Plan B,’ not contained in any previous agreement with the players.“

(emphasis in original)); id. at 7 (Plan B "had never been approved in or

made part of any union agreement." (emphasis in original)); McNeil v.

National Football League, 790 F. Supp. 871, 876 n.4 (D. Minn. 1992)

government has recognized here, the law of the Eighth Circuit

— the "Mackey circuit" — is fully in accord with the decision

below.’

The law of the other so-called "Mackey circuits" is also

in accord. In Prepmore Apparel, Inc. v. Amalgamated

Clothing Workers, 431 F.2d 1004 (Sth Cir. 1970), cert.

dismissed, 404 U.S. 801 (1971), the Fifth Circuit considered

the union’s antitrust claim that Prepmore and another company

had conspired to refuse to deal with the union concerning

wages and working conditions. Even though the alleged

restraint was not the subject of an agreement between labor

and management, the Fifth Circuit affirmed dismissal of the

antitrust claim on the basis of the nonstatutory labor

exemption. Id. at 1007.®

("NFL defendants implemented [Plan B] without the approval of either the

players or the NFLPA.").

7 See also Amalgamated Meat Cutters Local 576 v. Wetterau Foods,

Inc., 597 F.2d 133 (8th Cir. 1979). Wetterau, decided soon after Mackey,

involved an agreement between employers to replace striking workers with

non-union employees. As here, management and labor had not agreed on

the challenged restraint, which was implemented as part of the collective

bargaining process. Nonetheless, after first determining that the challenged

conduct was lawful under the labor laws, the court held that the

nonstatutory labor exemption barred the antitrust claim. Jd. at 135-36.

® United Brotherhood of Carpenters Local 1846 v. Pratt-Farnsworth,

Inc., 690 F.2d 489 (Sth Cir. 1982), cert. denied, 464 U.S. 932 (1983),

does not raise any conflict with the decision below. In that case, the court

said that "in order for a restraint of trade to be actionable under the

Sherman Act, there must be a restraint upon commercial competition in the

marketing of goods or services.” 690 F.2d at 532 (citation omitted).

Petitioners have conceded that there is no such restraint here. See Pet. 29a

& 1.8.

nee |

Petitioners’ roster of "Mackey circuits" also includes the

Ninth and Sixth Circuits. See Pet. 16. But the decisions upon

which petitioners rely do not address the issue presented here

— whether an agreement is necessary for the exemption to

apply — and both courts have indicated in other cases that

such agreement is not necessary.°

* From the Ninth Circuit, petitioners rely on Continental Maritime of

San Francisco, Inc. v. Pacific Coast Metal Trades Dist. Council, 817 F.2d

1391 (9th Cir. 1987). That case considered only whether an employer-

union agreement is sufficient to fall within the exemption. In Richards v.

Neilsen Freight Lines, 810 F.2d 898, 905 (9th Cir. 1987), the court

recognized that the nonstatutory exemption is not “limited to restraints

imposed by collective bargaining agreements.”

The law is the same in the Sixth Circuit. In Jn re Detroit Auto

Dealers Ass’n, 955 F.2d 457 (6th Cir.), cert. denied, 113 S. Ct. 461

(1992), local auto dealers agreed to close their showrooms on Saturdays

and certain evenings. Because the challenged restraint was outside the

scope of the collective bargaining process, the exemption did not apply.

The court of appeals nevertheless observed that “[t]o say that collective

bargaining is at the heart of the non-statutory labor exemption, however,

is not to say that the exemption only applies to collective bargaining

agreements.” Jd. at 466. See also Newspaper Drivers & Handlers’ Local

372 v. NLRB, 404 F.2d 1159, 1163 (6th Cir. 1968) (holding that lockout,

to which union had not agreed, did not violate antitrust laws), cert. denied,

395 U.S. 923 (1969).

In McCourt v. California Sports, Inc., 600 F.2d 1193, 1203 (6th Cir.

1979), upon which petitioners also rely, the Sixth Circuit held that the

challenged restraint, to which the union had agreed, was protected by the

exemption; the court never suggested that an agreement was necessary for

such a result. Judge Wald was therefore incorrect in suggesting that

McCourt “refused to extend [the exemption] beyond employer-employee

agreements." See Pet. App. 44a-45a. (McCourt was the sole appellate

decision on which Judge Wald relied in concluding that, notwithstanding |

the holdings of Powell and Williams, "(p}recedent is of limited assistance

in deciding” the issue presented here. Pet. App. 45a.) \

eee |

In sum, the current Solicitor General is correct in

recognizing that there is no circuit conflict on the question

presented in this case. Petitioners’ arguments to the contrary

are spurious.

B. The prior decisions of this Court addressing the

nonstatutory labor exemption plainly have not held that union

agreement is required for the nonstatutory labor exemption to

apply. Petitioners’ implication to the contrary (Pet. 15-16) is

undermined by the government’s brief, in which the current

Solicitor General reminds the Court of the government’s

position in Powell: “we suggested that . . . the question was

then one of first impression." U.S. Br. 11. See also Pet.

App. 13a-14a; p. 9, n.5, above. That suggestion was plainly

correct. '°

Forced to look further afield, petitioners assert (Pet. 20-

26) that the decisions of the Second, Eighth, and District of

Columbia Circuits conflict with the reasoning of two other

lines of decision by this Court. These attenuated contentions

are without merit.

product market restraint challenged by a party outside the collective

bargaining relationship. See Connell Constr. Co., Inc. v. Plumbers &

Steamfitters Local No. 100, 421 U.S. 616, 635 (1975) (the question is

whether the challenged action “has a potential for restraining competition

in a business market in ways that would not follow naturally from

elimination of competition over wages and working conditions"); Local

189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676 (1965);

United Mine Workers v. Pennington, 381 U.S. 657 (1965); Allen Bradley

Co. v. Local 3, international Brotherhood of Elec. Workers, 325 U.S. 797

(1945). See generaily Pet. App. 14a-15a. None of those cases holds that

union consent is required for the exemption to apply in any case, much less

a case, such as this, in which the restraint affects only the parties to the

collective bargaining relationship.

1. Petitioners contend (Pet. 21-23) that the court of

appeals’ decisions conflict with statements by this Court that

"[iJmplied antitrust immunity is not favored," National

Gerimedical Hosp. & Gerontology Ctr. v. Blue Cross, 452

U.S. 378, 388-89 (1981), and that courts should seek to

"reconcile[]" statutory schemes "rather than holding one

completely ousted," Silver v. New York Stock Exchange, 373

U.S. 341, 357 (1963). The decision below, like those of the

Second and Eighth Circuits, is fully in accord with those

principles.

Petitioners, as well as the government, build their

arguments on a fundamentally flawed assumption: that each

individual union member has a right to free competition over

the terms and conditions of his or her employment. There is

no such right. In a collective bargaining relationship, "the

employee loses the right to bargain for the best price for his

or her labor." Caldwell v. American Basketball Ass'n, 66

F.3d 523, 528 (2d Cir. 1995).

Subject, of course, to federal statutes specifically

overriding the NLRA, such as the Fair Labor Standards

Act, 29 U.S.C. § 201 et seq., or the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., the terms of the

individual’s employment are left exclusively to the union

and the employer to determine through processes and

rules mandated by the NLRA.

Id.

This principle of law is well established in this Court’s

precedents, a fact that those urging review simply ignore.

This Court has consistently ruled that the NLRA "extinguishes

the individual employee’s power to order his own relations

with his employer." NLRB v. Allis-Chalmers Mfg. Co., 388

U.S. 175, 180 (1967); see also J.I. Case Co. v. NLRB, 321

U.S. 332, 338 (1944) (the purpose of collective bargaining is

to “supersede the terms of separate agreements of

employees")."' Thus, as the court of appeals recognized

below, “once collective bargaining begins, the Sherman Act

paradigm of a perfectly competitive market necessarily is

replaced by the NLRA paradigm of organized negotiation —

a paradigm that itself contemplates collusive activity on the

parts of both employees and employers." Pet. App. 25a.

For this reason, among others, application of the

nonstatutory labor exemption to the employers’ exercise of

their right to implement bargaining proposals at impasse does

not displace or limit the scope of the antitrust laws. Nor does

it cause employees "who choose collective bargaining [to

have] distinctly fewer legal rights than employees who opt not

to unionize." Pet. 22. It instead reflects recognition that,

except to the extent that a product market may be adversely

affected, individual interests of the kind protected by the

antitrust laws simply do not exist in the collectively bargained

"market" that determines the terms and conditions of union

members’ employment.”

"' In fact, absent union agreement, employers are barred from seeking

to negotiate with individual employees. J.J. Case, 321 U.S. at 338-39.

In that situation, "individual bargaining is not an exercise of a right to free

competition under the antitrust laws; rather it is an exercise of a right

derived from collective bargaining itself." Caldwell, 66 F.3d at 528.

Accord Silverman v. Major League Baseball Player Relations Committee,

Inc., 1995 WL 574780 *5 (2d Cir. 1995) (“free agency is simply a

collectively bargained method of determining individual salaries for one

group of players"). See 29 U.S.C. §§ 158(d), 159(a) (obligating unionized

employees to bargain collectively over wages).

Employees who choose collective bargaining have different, not

“fewer,” rights compared to those who opt not tc unionize. Such valuable

rights include, for example, the right to negotiate as a group over wages

and working conditions, the right to boycott employers (in a strike) in

Even if that were not the case, petitioners are wrong in

asserting that the antitrust laws are "completely ousted" by the

courts of appeals’ decisions. The scope of the exemption

reflected in the decision below (as well as in Powell and

Williams) is narrowly tailored to reflect any necessary

accommodation "between the congressional policy favoring

collective bargaining under the NLRA and the congressional

policy favoring free competition in business markets."

Connell Constr., 421 U.S. at 621-22 (emphasis added).

Under the courts of appeals’ decisions, the nonstatutory

exemption applies only to the employers’ lawful exercise, in

the context of collective bargaining, of rights created under

the labor laws. In the context presented here, the exemption

would apply to salary terms that had been proposed in good

faith during the collective bargaining process and bargained in

good faith to impasse. (There is no dispute that the salary

term at issue here meets that test.) Amd even then, the

exemption would not apply if the challenged conduct adversely

affected competition in the product market, or if the

employers colluded with entities outside the collective

bargaining relationship.

2. There is no basis whatsoever for petitioners’

additional contention (Pet. 24-26) that application of the

nonstatutory labor exemption in the circumstances presented

here conflicts with labor preemption decisions such as Livadas

v. Bradshaw, 114 S. Ct. 2068 (1994), Fort Halifax Packing

Co. v. Coyne, 482 U.S. 1 (1987), and Metropolitan Life Ins.

Co. v. Massachusetts, 471 U.S. 724 (1985). Petitioners made

support of their good-faith bargaining demands, and the right to seek

redress under the labor laws for a failure to bargain in good faith. 29

U.S.C. § 157. —

no such argument below, and the government asserts no such

conflict.

This case concerns the interaction of two federal statutory

schemes; the cases upon which petitioners rely concern

preemption of state law by federal labor law. Furthermore,

state laws establishing minimum wages or occupational safety

standards merely limit the range of terms upon which the

parties may agree. In contrast, importation of federal antitrust

laws into the collective bargaining process would directly

interfere with "an employer’s right to ‘institute unilaterally the

working conditions which he desires,’ [one of] the lawful

‘tools of economic self-help’ available to be utilized as a tactic

in collective bargaining." Pet. App. 23a (quoting American

Ship Bldg. Co., 380 U.S. at 316).

To the extent that labor preemption principles provide a

useful analogy, the most relevant principle concerns

preemption of state laws regulating conduct that even

"arguably" constitutes an unfair labor practice under the

NLRA. San Diego Bldg. Trades Council v. Garmon, 359

U.S. 236, 244-45 (1959). Garmon preemption rests on the

comprehensiveness of the regulatory regime created by the

NLRA and Congress’ assignment of jurisdiction to a

specialized tribunal, the NLRB. Caldwell, 66 F.3d at 527.

The same concerns, are raised by petitioners’ position

here. Importing antitrust remedies into the collective

bargaining process would disrupt the comprehensive system of

labor law established by Congress; antitrust actions would give

employees an incentive "never [to] resort to the NLRB" or to

"institute parallel administrative and antitrust proceedings with

the risk of inconsistent adjudications." Jd. Such a result

would be fundamentally inconsistent with congressional intent

"to leave to the Board’s specialized judgment the inevitable

questions concerning multiemployer bargaining bound to arise

in the future." NLRB v. Truck Drivers Local 449 ("Buffalo

Linen"), 353 U.S. 87, 96 (1957) (citation omitted).

ll. THE COURTS OF APPEALS HAVE

CORRECTLY CONCLUDED THAT THE

NONSTATUTORY LABOR EXEMPTION

APPLIES TO RESTRAINTS IMPLEMENTED

THROUGH THE COLLECTIVE BARGAINING

PROCESS THAT DO NOT ADVERSELY

AFFECT A PRODUCT MARKET.

The court of appeals’ decision, like those of the Eighth

Circuit in Powell and the Second Circuit in Williams, is

plainly correct.

There is no dispute that the nonstatutory labor exemption

seeks an "accommodation between the congressional policy

favoring collective bargaining under the NLRA and the

congressional policy favoring free competition in business

markets." Connell Constr. Co., 421 U.S. at 621-22 (emphasis

added). Nonetheless, without regard to the presence or

absence of an impact on "competition in business markets,"

and notwithstanding the settled view "that federal labor policy

focuses on collective bargaining as a process, rather than

collective bargaining agreements alone," Pet. App. 17a;

Caldwell, 66 F.3d at529 & n.l, petitioners and the

government would limit the exemption not to "collective

bargaining under the NLRA," but rather to collective

bargaining agreements. See, e.g., Pet. 15; U.S. Br. at 14-15.

Such a limitation has been rejected by every one of the

eight courts of appeals to address the issue.’ It was also

rejected by Judge Wald, dissenting below, who recognized

"that if the collective bargaining process is to work without

undue interference from antitrust law, multiemployer

‘bargaining tactics’ must fall within the scope of the

nonstatutory labor exemption." Pet. App. 53a n.7.

Petitioners and the government recognize, as they must,

that the nonstatutory labor exemption protects aspects of the

collective bargaining process other than the ultimate

agreement. For example, there is no dispute that if employers

exercise their labor law right to lock out their employees, their

actions are protected by the nonstatutory labor exemption even

though the union does not agree to the lockout. Pet. App.

22a-23a; id. at 53a n.7 (Wald, J., dissenting). Accord

Williams, 45 F.3d at 691-92. And that is true even though

a lockout — a concerted refusal to deal — would restrain the

labor "market" far more severely than the restraint at issue

here.

3 In addition to the opinions of the six courts of appeals addressed at

pages 9-12, above, see Mid-America Regional Bargaining Ass'n v. Will

County Carpenters, 675 F.2d 881, 886 n.14 (7th Cir.) (the purpose of the

non-statutory labor exemption is to protect "the collective bargaining

process commanded by the labor laws" (emphasis in original)), cert.

denied, 459 U.S. 860 (1982); Scooper Dooper, Inc. v. Kraftco Corp. , 494

F.2d 840, 847 n.14 (3d Cir. 1974) ("To preserve the integrity of the

negotiating process, employers who bargain in good faith must be entitled

to claim the antitrust exemption.” (Emphasis added.))

“ See generally, e.g., American Ship Bldg. Co. v. NLRB, 380 U.S.

at 315 (recognizing “the legitimacy of [lockouts] as a means of applying

economic pressure in support of bargaining positions"); Buffalo Linen, 353

U.S. at 87 ef seq.

More generally, as the dissent below recognized,

"multiemployer ‘bargaining tactics’ must fall within the scope

of the nonstatutory labor exemption." Pet. App. 53a n.7

(Wald, J., dissenting). That conclusion is inescapable

because, as this Court has recognized, the collective

bargaining process established by the NLRA "is premised on

the belief that collective discussion backed by the parties’

economic weapons will result in decisions that are better for

both management and labor and for society as a whole." First

Nat’! Maintenance Corp. v. NLRB, 452 U.S. 666, 678 (1981)

(citations omitted) (emphasis added).'°

This Court has previously confirmed, as the dissent

acknowledged below (Pet. App. 51a), that an employer’s right

at impasse to “institute unilaterally the working conditions

which he desires" is among the lawful "tools of economic self-

help" available to be used in the collective bargaining process.

American Ship Bldg. Co., 380 U.S. at 316.'° There is

nothing in the case law or in federal labor policy that would

warrant treating this right differently from all other “tools of

'S See also NLRB v. Insurance Agents’ Int’! Union, 361 U.S. 477, 489

(1960) (collective bargaining process defined by “availability of economic

pressure devices to each [party] to make the other party incline to agree on

one’s terms”).

sight or even being sought,” and that “hope [no longer] exists that an

agreement may be reached.” Pet. App. 60a, 54a. But this Court’s

holdings make clear that impasse, "a recurring feature of the bargaining

process, . . . is only a temporary deadlock or hiatus in negotiations ‘which

in almost all cases is eventually broken, through either a change of mind

or the application of economic force.’" Charles D. Bonanno Linen

Service, Inc. v. NLRB, 454 U.S. 404, 412 (1982) (citation omitted). See

generally pp. 25-27, below (discussing recent collective bargaining

agreements in professional football, basketball and hockey, all of which

followed multiple instances of impasse in negotiations).

economic self-help" afforded to employers under the labor

laws, all of which were intended by Congress to be

"unrestricted by amy governmental power to regulate." Lodge

76 Int'l Ass'n of Machinists v. Wisconsin Employment

Relations Comm’n, 427 U.S. 132, 141 (1976) (citation

omitted) .!’

Moreover, such a distinction would run counter to federal

labor policy for at least two reasons. First, management’s

right at impasse to implement its proposed terms of

employment is a necessary counterweight to the additional

economic weapon that, under the federal labor laws, the union

secures at impasse: the right to make interim agreements with

individual members of the multiemployer bargaining unit,

thereby gaining the opportunity to "whipsaw" management.

See Bonanno Linen, 454 U.S. at 415-16 & n.9. The

economic force of this added right is significant. As the

dissenters in Bonanno Linen argued:

By allowing the union to negotiate interim agreements in

order to whipsaw the employer group and yet denying the

employers the necessary defense of withdrawal [from the

multiemployer collective bargaining unit], the Board is

'7 Petitioners are badly mistaken in claiming that the labor law right

to implement proposals at impasse “is simply a continuation of [the

employers’] common law right to operate their businesses in support of

their own commercial interests." Pet. 23. That unsupported assertion is

conclusively undermined by the continuing labor law requirements that

limit this right to terms previously negotiated with the union in good faith

to impasse. E.g., NLRB v. Katz, 369 U.S. 736, 745 (1962). These

restrictions confirm that, after impasse, the parties remain in a collective

bargaining relationship and that the employers’ right to operate their

businesses continues to be governed and regulated by the labor laws. See

also p. 20, n.16, above.

hardly living up to its asserted — and mandated —

commitment to evenhandedness.

Id. at 423 (Burger, C.J., and Rehnquist, J., dissenting).®

Thus, the right to implement proposals at impasse is necessary

to maintain the balance of economic tools created by the labor

laws.

Second, labor law requires that after impasse, members

of a multiemployer bargaining unit must continue to bargain

as a unit for a new permanent agreement; individual

employers may not withdraw from the unit at that time. See

Bonanno Linen, 454 U.S. at 412 & n.8. Thus, voluntary

collusive actions by independent actors, which ordinarily

motivate antitrust concerns, simply do not exist in the context

of multiemployer bargaining, which “itself contemplates

collusive activity on the part of both employees and

employers." Pet. App. 25a.'°

The presence of "a multiemployer organization does not

alter the fact that there is no right to bargain individually, nor

'8 The very purpose of multiemployer bargaining is to “prevent[] a

union from whipsawing employers by shutting them down one-by-one, a

tactic that forces each employer to give in to the union’s most extreme

demand." Williams, 45 F.3d at 688 (citing Bonanno Linen, 454 U.S. at

409-10 & n.3).

9 Moreover, the NLRB and at least one court of appeals have held

that sports leagues must engage in multiemployer bargaining from the

outset. See North Am. Soccer League v. NLRB, 613 F.2d 1379 (Sth Cir.)

(affirming the NLRB’s determination that teams in a soccer league must

bargain as a ‘joint employer’), cert. denied, 449 U.S. 899 (1980). See

also Williams, 45 F.3d at 689 ("In the sports industry, multiemployer

bargaining exists [in part] because some terms and conditions of

employment must be the same for all teams . . . ."); id. at 692 ("sports

leagues are an exception to the principle of voluntariness").

does it create an antitrust claim where none existed."

Caldwell, 66 F.3d at 530. The existence of multiemployer

bargaining, by which employers “band together to act as a

single entity in bargaining with a common union or unions,"

Williams, 45 F.3d at 688, does, however, underscore the fact

that the context in which Section 1 of the Sherman Act is

traditionally applied — a market restrained by the

unauthorized joining together of independent competitors —

is simply not present here.

For these reasons, among others, it is simply wrong to

suggest that unless this Court were to exclude from the scope

of the exemption the labor law right to implement at impasse,

the collectively bargained "playing field [would be tilted] in

employers’ favor." See Pet. App. 34a (Wald, J.,

dissenting). Unionized employees have never had an

antitrust remedy for actions taken by employers to exercise

their collective bargaining rights under the labor laws.

To the contrary, importing the antitrust laws into the

collective bargaining process — which could not possibly

achieve the Sherman Act’s objective of free competition, as

demonstrated above — would, by judicial fiat, simply provide

employees with an additional, inherently coercive bargaining

tactic and thereby “subvert fundamental principles of our

federal labor policy as set out in the [NLRA]." Wood v.

2° None of the cases cited by the dissent below (Pet. App. 37a) for the

proposition “that the antitrust laws presumptively apply to [multijemployer-

imposed restraints on labor markets” involved the collective bargaining

process. See, e.g., Cordova v. Bache & Co., 321 F. Supp. 600, 608

(S.D.N.Y. 1970) (defendants’ action was not “in anticipation of, or

connected in any way with, multi-employer collective bargaining").

National Basketball Ass’n, 809 F.2d 954, 959 (2d Cir.

1987).7!

In short, nothing in the labor laws or in the precedents of

this or any other court supports excluding from the scope of

the exemption the employer’s right at impasse to implement a

pre-impasse proposal bargained in good faith with the union.

The courts of appeals have plainly reached the correct result:

"only the most crude accommodation of the federal labor and

antitrust policies would shield union-employer agreements

from Sherman Act liability, but leave exposed the lawful

means employed in the process to reach those agreements."

Pet. App. 20a.

Ii. THE QUESTION PRESENTED HAS NOT

ARISEN OUTSIDE PROFESSIONAL

SPORTS, AND RECENT EXPERIENCE

DEMONSTRATES THAT THE

COLLECTIVE BARGAINING PROCESS

HAS NOT BEEN ADVERSELY AFFECTED

BY THE DECISIONS OF THE COURTS OF

APPEALS.

A. There is no basis whatsoever for petitioners’ dire

prediction (Pet. 26) that the court of appeals’ decisions "will

subvert the prospects for peaceful labor-management

bargaining in major sectors of the national economy." As the

Second Circuit has observed, "there is no precedent outside

21 Here, for example, injecting the antitrust laws into the collective

bargaining process enabled the NFLPA to “invoke the antitrust laws and

their threat of treble damages to gain an advantage in bargaining over a

salary provision about which [NFLPA] members do not care deeply

enough to strike." Pet. App. 20a. Such a radical shift in the balance

between employers and employees would “cause a massive reshaping of the

institution of collective bargaining." Williams, 45 F.3d at 691.

sports for ever initiating this genre of litigation," an antitrust

challenge to the employers’ implementation at impasse of its

pre-impasse bargaining proposal. Caldwell, 66 F.3d at 530.

Indeed, neither petitioners nor the government cite a single

case outside the sports context — and we are aware of none

— in which this issue has even arisen since the Eighth

Circuit’s decision over six years ago in Powell.

Given that the issue has arisen only rarely in the 105

years since passage of the Sherman Act — and not at all

outside the sports context (which involves "a barely

discernible fraction of the nation’s unionized employees,"

Caldwell, 66 F.3d at 531) — there is no reason to assume that

the court of appeals’ decision will have a material impact on

collective bargaining in any market. That is particularly true

in light of the fact that the "professional sports industry has a

very different history and very different economic

imperatives" than other industries. See generally Silverman,

1995 WL 574780 at *5. Accord, Wood, 809 F.2d at 961

(collective bargaining between professional athletes and

leagues raises "numerous problems with little or no precedent

in standard industrial relations").

Petitioners engage in revisionist history — if not total

fiction — in suggesting that recent "tumultuous" labor

relations in professional sports came about "“[IJargely as a

result of Powell." Pet. 27. In Powell itself, which followed

a strike by NFLPA members against the NFL, the Eighth

Circuit referred to the “often tempestuous relationship"

between players and management, a phenomenon that can be

traced back to the origins of professional sports. 930 F.2d at

1303. Powell is no more responsible for such "tumult" than

Judge Lamberth’s June 1991 decision below, which allowed

unions representing professional athletes to exploit, as a

collective bargaining tactic, the potential for antitrust remedies

if employers sought to exercise their labor law rights.

It bears mention, however, that the potential for such

exploitation diminished with the July 1994 district court

decision in Williams, which embraced the Eighth Circuit’s

holding in Powell. National Basketball Ass'n v. Williams, 857

F. Supp. 1069, 1078 (S.D.N.Y. 1994), aff'd, 45 F.3d 684 (2d

Cir. 1995). Not long thereafter, the National Hockey League

reached agreement with its players on a new labor agreement

that will continue in effect at least through the year 2000,

demonstrating that "collective bargaining, instead of litigation,

can operate as an effective means of union-employer dispute

resolution in professional sports." Pet. App. 3la-32a. And

then, following the Second Circuit’s decision in Williams and

the D.C. Circuit’s decision below, the National Basketball

Association and its players’ union reached agreement in

principle on a collective bargaining agreement that will remain

in place until at least 2001; that agreement, among other

things, is expected to lead to withdrawal of the petition for a

writ of certiorari in Williams. See No. 95-137, Letter of

Oct. 5, 1995, from Howard L. Ganz to Francis J. Lorson.

The NFL and the NFLPA now have a collective

bargaining agreement that will extend until the year 2000, Pet.

App. 9a n.3, and that agreement may soon be extended well

into the next century.“ Among other things, the current

NFL agreement determines the salaries of practice players;

consequently, the underlying issue in this case is of no

continuing significance.

One thing can therefore be said without dispute: Labor

relations in professional football, basketball, and hockey are

now quite stable, and the prospect is that those relationships

2 See, e.g., David Aldridge, League And Its Players Union Can

Hardly Wait To Talk Deal, Washington Post, November 1, 1995, at C4.

will remain stable for some years to come.” From the

standpoint of professional sports — the only industry in which

an employers’ right to implement at impasse has ever been

challenged — there is no basis whatsoever for immediate

review by this Court of the issue presented here.

B. As the court of appeals noted, those who advocate

applying the antitrust laws to some part of the collective

bargaining process have put forward a "dizzying array" of

proposals, not one of which has been accepted by a court of

appeals. See Pet App. 20a-2la (citing proposals that the

exemption (i) terminate with the expiration of the collective

bargaining agreement (ii) terminate at impasse (iii) terminate

sometime soon after impasse); Pet. App. 50a (proposal to

exclude from exemption certain collective bargaining tactics)

(Wald, J., dissenting); see also id. at 21a (none of the

proposals "makes the slightest sense under established labor

law principles"). Those "who favor leaving certain aspects of

the collective bargaining process unshielded by the exemption

cannot agree on any point at which the exemption must expire

in order to properly accommodate federal labor policy." Pet.

App. 20a. The government here, for example, advances a

proposal different from the proposal advanced by petitioners

below, and both of those proposals differ from the proposal

suggested by the sole dissenter on the court of appeals, Pet.

App. 53a n.7.

® The nonstatutory labor exemption has no application to professional

baseball, which, unlike other professional sports, has a blanket exemption

from the antitrust laws. Flood v. Kuhn, 407 U.S. 258 (1972). Even if

that were not the case, the nonstatutory labor exemption would not have

applied to baseball’s recent labor dispute, in which management did “not

[even] claim that it had bargained to an impasse” over the disputed terms

and conditions of employment. Silverman, 1995 WL 574780 at *5.

The implications of many of these proposals are unclear

and potentially far-reaching. Some call into question the

entire process of multiemployer bargaining. Others raise

serious problems of administrability. See Pet. App. 21a n.6.

Certiorari should not be granted to resolve such an academic

debate, especially one involving an issue that has rarely arisen

in the past and is not likely to arise anytime soon. Unless and

until one of those proposals generates a conflict in the circuits,

review by this Court is unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,