Amicus Curiae Brief — Brown v. Pro Football, Inc.

No. 95-388

ee 3 )

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

ANTHONY Brown, et ai.,

: Petitioners,

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

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF FOR THE

MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

ROBERT M. WEINBERG

VIRGINIA A. SEITZ

(Counsel of Record)

3REDHOFF & KAISER

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

DONALD M. FEHR

MICHAEL S. WEINER

MAJOR LEAGUE BASEBALL

PLAYERS ASSOCIATION

12 East 49th Street

New York, New York 10017

(212) 826-0808

November 1995 Counsel for Amicus Curiae

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-388

ANTHONY BRowN, et al.,

. Petitioners,

PRO FOOTBALL, INC.,

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

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

The Major League Baseball Players Association

(“MLBPA”) has for many years been recognized as the

exclusive bargaining representative for all major league

baseball players. Because respondents here have refused

to consent to the MLBPA’s filing of a brief amicus curiae,

the MLBPA seeks leave to file the following brief amicus

curiae in support of the petition for certiorari in the

above-captioned case. The grounds for this motion are as

follows:

1. At present, major league baseball’s reserve system

enjoys a unique exemption from the federal antitrust laws

by virtue of this Court’s decision in Federal Baseball

Club v. National League, 259 U.S. 200 (1922). Federal

Baseball Club was reaffirmed in Flood v. Kuhn, 407 U.S.

258, 282 (1972).

2. Since Flood was decided, courts have considered

the breadth of professional baseball’s antitrust exemption.

See Piazza v. Major League Baseball, 831 F. Supp. 420

(E.D. Pa. 1993); Butterworth v. National League of

Professional Baseball Clubs, 644 So. 2d 1021 (S. Ct.

Fla. 1994). And, in the interest of its members, the

MLBPA has petitioned Congress to enact legislation mak-

ing plain that the antitrust laws apply to professional base-

ball. In August 1995, the Senate Judiciary Committee

voted to approve the The Major League Baseball Anti-

trust Reform Act of 1995, S. 627. That bill, which would

remove professional baseball’s special exemption from the

antitrust laws, will be placed on the calendar of the Senate

as soon as the Committee’s report is filed. A companion

bill is pending consideration before the House Judiciary

Committee. A similar bill passed the House Judiciary

Committee in September 1994, but was not acted upon

by the full House before that Congress ended its session.

3. In light of the MLBPA’s ongoing efforts with re-

spect to professional baseball’s antitrust exemption, the

issues raised by the petition for certiorari are of critical

importance to the MLBPA. S. 627 provides only that

the antitrust laws that apply to all other businesses also

“apply to the business of professional major league base-

ball.” See section 27(a). And, the majority opinion in

Brown v. Pro Football, Inc., 50 F.3d 1041 (D.C. Cir.

1995) (“Brown”), holds that professional athletes forfeit

their rights under the antitrust laws if they are represented

by an exclusive bargaining representative.

4. In addition, as the exclusive bargaining representa-

tive in the only professional sport where the employers

assert that the antitrust laws do not apply, the MLBPA

is uniquely situated to address the important questions

raised by the petition for certiorari. As a result of the

decision in Flood, the MLBPA has extensive knowledge

of labor relations in the professional sports context when

employers do not feel in any way restrained by the anti-

trust laws. Not coincidentally, major league baseball has

sanaseaseeemenomnaeemaemmneanaemasameanesaaeammmmmm |

suffered eight successive lockouts and or strikes. The bar-

gaining parties have not concluded a new collective bar-

gaining agreement without a work stoppage since 1970,

and baseball is the only proiessional sport to have lost its

post-season championship, the World Series, to labor-

management strife.

5. In our brief, we show that the rule adopted in

Brown will have significant destabilizing effects on labor

relations in the sports and entertainment industries. We

also show that the Brown court decided an important

and recurring question of federal law—the proper har-

monization of federal labor policy and federal antitrust

policy—in a manner that departs from principles well

established by this Court. We urge in the accompanying

brief that this Court grant certiorari to settle the law in

this area.

Wherefore, the MLBPA respectfully requests that its

motion for leave to file a brief amicus curiae in support

of petitioners be granted.

Respectfully submitted,

ROBERT M. WEINBERG

VIRGINIA A. SEITZ

(Counsel of Record)

BREDHOFF & KAISER

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

DONALD M. FEHR

MICHAEL S. WEINER

MAJOR LEAGUE BASEBALL

PLAYERS ASSOCIATION

12 East 49th Street

New York, New York 10017

(212) 826-0808

November 1995 Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

REASONS FOR GRANTING THE WRIT ..................---- 1

CO I aa ccssssieciig tisheclosstaisiascitininescteietccsceshiistvibtasiaseanirvioainibaesih 10

(i)

il

TABLE OF AUTHORITIES

CASES Page |

Allen Bradley Co. v. Local Union No. 3, IBEW,

— Bee Ga OR er Ben eee 8,9

American Hospital Ass’n v. National Labor Rela- ’

tions Board, 499 U.S. 606 (1991) ........................ 6

Anderson v. Shipowners Ass’n, 272 U.S. 359

FSU ss acceureeiiissaseichchdniecshuneha/aibanipeeniaitaandiaisineceaaiaaliat 8

Brown v. Pro Football, Inc., 50 F.3d 1041 (D.C. |

RR, RI batsictnncinesesactaiacebsansdinnsich cinleteekunaaeinaiiaeaanaal passim

Connell Constr. Co. v. Plumbers & Steamfitters

Local No. 100, United Ass’n of Journeymen of

the Plumbing & Pipefitting Indus., 421 U.S. 616

(Ry eaten NE Re Se NS ABER bry Real 9 AE RL 8,9

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

CREE cicsiccnes sibs bisa acsitael onauneadieatecuailaals tama west anee 6

H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n,

Ps Be 8, Sa 8

JI. Case v. National Labor Relations Board, 321

ct G2! : TARR ae eee. ie PRA BLS, 4

Livadas v. Bradshaw, 114 S. Ct. 2068 (1994) _........ 6

Local Union No. 189, Amalgamated Meat Cutters

& Butcher Workmen of North America v. Jewel

y ft me BIE 8: ee 8,9

Mackey v. National Football League, 543 F.2d 606

Cie Mt: EE ihe ieee 8

Metropolitan Life Ins. Co. v. Massachusetts, 471

se SF eet ae emi nener Amie ah Manton yun ee 5, 6 |

Powell v. NFL, 930 F.2d 1293 (8th Cir. 1989),

cert. denied, 498 U.S. 1040 (1991) .........-.000... 4 |

Radovich v. National Football League, 352 U.S. 445

bs GRRE Renn oe nee IY SE LEY 8

Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C.

3 Te RR eerie has ten Sere eT TR 8

United Mine Workers v. Pennington, 381 U.S. 657

SE aIIIIIEN <is-s'si a cesta Soosescedbeaionastacb ceauaanailaianaichamacainiaaienaAaae 8,9

United States v. Hutcheson, 312 U.S. 219 (1941)... 7

Williams v. National Basketball Ass’n, 45 F.3d 684

PENG, SITET loci sctrcasesdnaiecd citiaodileanaiakchalieadaccuaianiamannal 3, 4,5

iii

TABLE OF AUTHORITIES—Continued

STATUTES Page

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In THE

Suprene Court of the United States

OCTOBER TERM, 1995

No. 95-388

ANTHONY Brown, et al.,

. Petitioners,

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 OF

MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

This brief amicus curiae in support of petitioner is

filed by the Major League Baseball Players Association

(“MLBPA”), the exclusive bargaining representative for

all major league baseball players. The interest of the

MLBPA is set out in the accompanying motion for leave

to file brief amicus curiae.

REASONS FOR GRANTING THE WRIT

The rule adopted by the court below and by the Second

Circuit Court of Appeals, see note 1 infra, will have sig-

nificant destabilizing effects on the conduct of labor rela-

tions in the sports and entertainment industries. That rule

marks a profound departure from the principles crafted

2

by this Court. Rather than harmonizing the federal labor

laws and the federal antitrust laws as it was required to

do, the court below enlarged the nonstatutory labor ex-

emption from the antitrust laws beyond the confines estab-

lished by this Court. The lower court’s rule would

disserve both statutory schemes: Employees would be

deterred from exercising rights established by the National

Labor Relations Act (“NLRA”) for the protection of

employees; and unreasonable anticompetitive conduct by

groups of employers, which would otherwise violate the

federal antitrust laws, would be shielded from the pro-

hibitions of those laws. This case merits plenary con-

sideration by this Court.

A. The respondents, the Clubs of the National Foot-

ball League (“NFL”), agreed among themselves to fix

the salaries of petitioners, football players on the Clubs’

developmental squads, at $1000 per week. Absent this

anticompetitive agreement, the developmental squad

players would each be free individually to negotiate com-

pensation with an NFL Club, and the amount of that

compensation would be determined by the forces of the

free market.

The District Court held that the Clubs’ agreement was

“significantly anticompetitive in its effect” and lacked any

procompetitive justification. Pet. App. 110a-114a. The

court rejected respondents’ reliance on the nonstatutory

labor exemption from the antitrust laws, because (i) there

was no collective bargaining agreement between the Clubs

and petitioners’ union, the NFL Players Association; (ii)

the parties had reached impasse on the issue of petitioners’

compensation; and (iii) the NFL Players Association had

never agreed to fixed salaries for petitioners. /d. at 72a-

80a, 86a-90a.

A divided panel of the Court of Appeals reversed.

Brown v. Pro Football, Inc., 50 F.3d 1041 (D.C. Cir.

1995) (“Brown”). For the majority, Chief Judge

Edwards held that “the nonstatutory labor exemption

3

shields from antitrust challenge alleged restraints on com-

petition imposed through the collective bargaining process,

so long as the challenged actions are lawful under the

labor laws and primarily affect only a labor market or-

ganized around a collective bargaining relationship.” /d.

at 10a.’ In dissent, Judge Wald maintained that the ma-

jority’s holding constitutes an unwarranted expansion of

this Court’s limited nonstatutory labor exemption that

will undermine federal labor and antitrust laws. App.

48a-49a.

B. There are two compelling reasons that the petition

for certiorari in this case should be granted: First,

Brown and Williams, if they stand, will have the effect of

significantly destabilizing labor relations in the sports and

entertainment industries and will undermine, rather than

serve, the interests that the federal labor laws are intended

to protect. Second, Brown and Williams resolve an im-

portant and recurring question regarding the harmoniza-

tion of the federal labor and antitrust laws in a manner

that departs from the principles established by this Court’s

decisions.

1. Brown holds that members of a multiemployer

group who agree to engage in conduct in their labor

market that violates the antitrust laws are exempt from

those laws solely because their employees exercise the

right under the NLRA to be represented by a union.

Such employees may gain the right to assert antitrust

claims against the multiemployer group only if the union

ceases to be the employees’ exclusive collective bargain-

ing representative. See Brown, 50 F.3d at 1057 (“if em-

ployees wish to seek the protections of the Sherman Act,

they may forego unionization or . . . decertify their

unions”). The practical effect of this decision is to de-

1 In so doing, the majority followed a recent decision of the Court

of Appeals for the Second Circuit, Williams v. National Basketball

Ass'n, 45 F.3d 684 (2d Cir. 1995) (“Williams’’).

4

stabilize labor relations in the sports and entertainment

industries.

In professional football, as in most other sports and

entertainment industries, the union has determined that -

the best way to maximize union members’ economic in-

terests is to preserve the right of each member individually

to negotiate and contract for his own salary so that each

member can exert leverage based on his unique skills

and personal contributions. See J.J]. Case v. National

Labor Relations Board, 321 U.S. 332, 338 (1944) (“Of

course, where there is great variation in circumstances of

employment or capacity of employees, it is possible for

the collective bargain to prescribe only minimum rates

or maximum hours or expressly to leave certain areas

open to individual bargaining”) (emphasis added). Prior

to the decisions in Brown and Williams, sports and enter-

tainment unions and their individual members operated

under the assumption that each individual’s right to nego-

tiate and agree to compensation with an employer was

protected from unreasonably anticompetitive employer

conduct by the antitrust laws.

If Brown and Williams stand, that assumption becomes

incorrect. At critical moments in the collective bargain-

ing relationship—such as the crucial junctures where a

collective bargaining agreement expires and where an

impasse in bargaining is reached—unions and union

members would have to weigh whether the members’

interests would be best served by terminating the union’s

Status as the exclusive bargaining representative so that

members could assert their individual rights under the

‘ antitrust laws. Unions and employers would bargain in

an atmosphere where at any moment the bargaining rela-

tionship could disappear.

Far from being a remote possibility, this scenario has

already occurred. Informed by the Court of Appeals for

the Eighth Circuit that their antitrust rights had been

extinguished, see Powell v. NFL, 930 F.2d 1293 (8th

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

players decertified their union for six full seasons. See

App. 30a, 48a. And, after Williams was decided, pro-

fessional basketball experienced its first work stoppage

when the NBA locked out the players in response to a

petition for decertification of the exclusive bargaining

representative. See Pet. 28 & n.12.

This Court should take this case to resolve whether the

significant destabilizing effect of Brown and Williams is

the result that Congress intended.

2. Under the decision below, employees in the sports

and entertainment industries are required to choose be-

tween the protections of the system of labor relations

established by the NLRA or the protections against un-

reasonable anticompetitive restraints provided by the anti-

trust laws. Under principles established by this Court,

however, employees are not required to make such an

election. Instead of harmonizing the NLRA and the anti-

trust laws, the Brown court’s rule unduly expands the

nonstatutory labor exemption, thereby undermining both

statutory schemes.

a. By providing that employees who exercise their

statutory right under the NLRA to choose a bargaining

representative automatically forfeit their right to the pro-

tections of the antitrust laws in the labor market, the

rule adopted below would discourage employees from

using the very processes that the NLRA is designed to

foster.”

* As this Court stated in Metropolitan Life Ins. Co. v. Massachu-

setts, 471 U.S. 724, 753-54 (1985) (quoting from section 1 of the

NLRA), the NLRA is intended to “encourage the practice and

procedure of collective bargaining and . . . protect [] the exercise

by workers of full freedom of association, self-organization, and

designation of representatives of their own choosing, for the

purpose of negotiating the terms and conditions of their employ-

ment or other mutual aid and protection.” See also e.g., American

6

This Court has often held that state laws may not bur-

den the NLRA right of self-organization by providing

a benefit or entitlement to nonunionized employees that

is not provided to unionized employees: “It would turn

the policy that animated the Wagner Act on its head to

understand it to have penalized workers who have chosen

to join a union by preventing them from benefiting from

state labor regulations imposing minimal standards on

nonunion employers.” Metropolitan Life Ins. Co. v.

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

Similarly, this Court has observed that federal laws

providing for minimum employment standards apply

without regard to whether employees are or become

unionized: “Nor has Congress ever seen fit to exclude

unionized workers and employers from laws establishing

federal minimum employment standards.” Metropolitan

Life, 471 U.S. at 755 (emphasis added). See also

Livadas, 114 S. Ct. at 2081 (“[A]s we observed in

Metropolitan Life, the widespread practice in Congress

and in state legislatures has assumed the contrary, be-

stowing basic employment guarantees and protections on

individual employees without singling out members of

labor unions (or those represented by them) for

disability.” ).

There is no principled basis for singling out the anti-

trust laws for treatment different from that received by

federal safety and health, pension, and antidiscrimination

laws, as the Brown court has done. Absent some express

statement by Congress, employees do not lose the benefit

of the statutory rights that they have as individuals sim-

Hospital Ass'n v. National Labor Relations Board, 449 U.S. 606,

609 (1991) (“The central purpose of the Act was to protect and

facilitate employees’ opportunity to organize unions to represent

them in collective-bargaining negotiations.’’).

3 Accord Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 19-22

(1987) ; Livadas v. Bradshaw, 114 S. Ct. 2068, 2081-82 (1994).

ania

7

ply because they are represented by a union. The anti-

trust laws contain no such exclusion.‘

b. There is no express provision in the labor laws or

the antitrust laws that exempts the challenged actions of

the NFL Clubs from the application of the antitrust laws.’

Nevertheless, the Brown court decided that the NFL

Clubs’ actions are protected from antitrust scrutiny by

virtue of the nonstatutory labor exemption to the anti-

trust laws. In so deciding, Brown would enlarge the non-

statutory labor exemption well beyond the confines estab-

lished by this Court’s decisions.

This Court created the nonstatutory exemption to ad-

dress a particular and defined area of tension between

labor law and antitrust law. That tension arises when a

union—in furtherance of the legitimate interests of its

members—enters into an agreement with a group of

* On this point, we cannot improve upon the words of the United

States in its brief urging the Supreme Court to grant certiorari

in Powell:

Neither the text nor the history of the NLRA fairly sug-

gests that Congress implicitly intended broadly to deprive

unionized workers of the antitrust laws’ protection from

employer-imposed restraints on competition in the labor market.

The text of the NLRA does not mention the antitrust laws, and

the legislative history demonstrates no intent to restrict the

preexisting rights of workers as the price of participation

in a collective bargaining relationship—rights that presumably

would continue to exist for other, non-unionized workers. To

the contrary, the predominant thrust of the statute (and of

related enactments such as the Norris-LaGuardia Act) is to

expand the protection afforded employees.

Brief for the United States as Amicus Curiae at 13-14 (Dec. 1990).

° The labor laws and the antitrust laws do contain express provi-

sions exempting certain unilateral union activities from the reach

of the antitrust laws. See 15 U.S.C. § 17; 29 U.S.C. §8 52, 104. See

generally United States v. Hutcheson, 312 U.S. 219, 282 (1941)

(statutory exemption for union activity applies “[s]o long as a

union acts in its own self-interest and does not combine with non-

labor groups”).

———

8

employers that enables the employers to engage in anti-

competitive conduct that would violate the antitrust laws

if done by the employers on their own. In that “very

narrow” area, Allen Bradley Co. v. Local Union No. 3,

IBEW, 325 U.S. 797, 801 (1945), the antitrust laws,

which seek to foster competition, are in tension with the

labor laws, which permit unions to bargain with groups

of employers and to further the interests of the employees

they represent by removing certain terms and conditions

of employment from competition among the employers.

The nonstatutory labor exemption adopted by this

Court has been carefully crafted in a series of cases to

relieve that tension, without unnecessarily undermining

the achievement of either statute’s objectives, by shield-

ing the parties to such agrements from antitrust liability

only where the agreements are reached through bona fide,

arm’s length collective bargaining. See Allen Bradley,

supra; United Mine Workers v. Pennington, 381 USS.

657 (1965); Local Union No. 189, Amalgamated Meat

Cutters & Butcher Workmen of North America v. Jewel

Tea Co., 381 U.S. 676 (1965); Connell Constr. Co. v.

Plumbers & Steamfitters Local Union No. 100, United

Ass'n of Journeymen of the Plumbing & Pipefitting

Indus., 421 U.S. 616 (1975); H.A. Artists & Assos., Inc.

v. Actors’ Equity Ass'n, 451 U.S. 704 (1981).

The Brown court acknowledged that antitrust prohibi-

tions apply to anticompetitive practices in a labor market

just as they do in a product market.° The court nonethe-

less found this Court’s cases defining the nonstatutory

labor exemption to be of only marginal relevance because

they involve injuries to businesses that asserted that they

were being injured by anticompetitive conduct in the

6 See, e.g., Radovich v. National Football League, 352 U.S. 445,

453-54 (1957) ; Anderson v. Shipowners Ass’n, 272 U.S. 359 (1926) ;

Mackey v. National Football League, 543 F.2d 606, 616-18 (8th

Cir. 1976); Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C. Cir.

1978).

|

9

product market, whereas here the asserted injuries are to

employees in the labor market. See 50 F.3d at 1050

(“the Court consistently has struggled to balance the in-

terests of those involved in collective bargaining against

the impact of their activities on the product market, pay-

ing little attention to any impact on the labor market’).

But this Court’s cases rest on the principle that the

nonstatutory labor exemption should not be used to im-

munize employer - groups from antitrust liability for

unilateral anticompetitive actions taken solely for the

employers’ own interests, without the consent of the union

involved. See Allen Bradley, 325 U.S. at 800 (“Quite

obviously this combination of business men has violated

both §§ 1 and 2 of the Sherman Act, unless its conduct

is immunized by the participation of the union.”): Jewel

Tea, 381 U.S. at 689-90 (a collective bargaining agree-

ment provision restricting the hours of operation of com-

peting food store owners “is so intimately related to wages,

hours and working conditions that the union’s successful

attempt to obtain that provision through bona fide, arm’s

length bargaining in pursuit of their own labor union

policies” is within the nonstatutory labor exemption to

the antitrust laws) (White, J.) ( plurality opinion). See

also Pennington, 381 U.S. at 661-66: Connell, 421 U.S.

at 622.

In Brown and Williams, the courts of appeals thus

would create a far more expansive antitrust exemption

than anything contemplated by this Court, much less by

the antitrust and labor statutes themselves. Under the

rule adopted below, the nonstatutory labor exemption

would shelter unreasonably anticompetitive conduct by a

group of employers to which the union had never at any

time consented. Such a rule would both deter the exercise

of rights established by the NLRA and shield anticompeti-

tive conduct that the antitrust laws are intended to

prohibit.

C. As the experience of major league baseball dem-

onstrates, see MLBPA’s Motion for Leave to File Brief

10

Amicus Curiae, the rule adopted below has substantial

deleterious consequences for labor relations in the sports

and entertainment industries. And the rule represents

a profound departure from the principles established by

this Court to govern the harmonization of federal labor

and antitrust laws. This case merits the Court’s plenary

consideration.

CONCLUSION

For the foregoing reasons, the petition for certiorari to

the United States Court of Appeals for the District of

Columbia Circuit should be granted.

Respectfully submitted,

ROBERT M. WEINBERG

VIRGINIA A. SEITZ

(Counsel of Record)

BREDHOFF & KAISER

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

DONALD M. FEHR

MICHAEL S. WEINER

MAJOR LEAGUE BASEBALL

PLAYERS ASSOCIATION

12 East 49th Street

New York, New York 10017

(212) 826-0808

November 1995 Counsel for Amicus Curiae