# Opposition Brief — Brown v. Pro Football, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 231

## Text

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(ry) rs
\ 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)

ee

ii

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

Vv

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

vi

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)

2
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

3

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.

4

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 -

5

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-

6

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

7

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).

8

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.

9

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.

10

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

© See also Petition for a Writ of Certiorari in Powell v. NFL, No. 89-
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)

11

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 |

12

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 |

13

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.

© This Court’s prior decisions in this area each addressed an alleged
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.

14

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

15

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

16

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. —

17

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

18

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.

19

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.

20

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”).

'© Judge Wald assumed that at impasse, "an agreement is no longer in
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).

21

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.

22

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").

23

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").

24

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.

25

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.

26

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.

27

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.

28

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,
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2172%3A03. Public record. Not legal advice.