Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date





William & Mary Law School




Twenty-four years after pronouncing that "Congress[ ,]... not... this Court[, must remedy] any inconsistency or illogic" in the long standing exemption of baseball, but not other sports from the reach of the antitrust laws,' the Supreme Court last term reduced substantially the uniqueness of Major League Baseball's control over its labor market. The Court did so not by exposing baseball to antitrust attack, but rather by clarifying that restrictions on player labor mobility and freedom of contract imposed by all North American leagues of professional sports teams2 also enjoy an exemption from antitrust scrutiny as long as their labor markets are subject to collective bargaining.3

In Brown v. Pro Football, Inc.,4 the Court held that employers could conspire and agree to take actions to impose controls on a labor market, if those actions "grew out of and were "directly related to" a multiemployer bargaining process, did not 'offend the federal labor laws that sanction and regulate the process, affected terms of employment subject to compulsory bargaining, and concerned only parties to the collective bargaining relationship.5 All major professional team sports clubs have joined with other league clubs to bargain in multiemployer units with unions representing the athletes that they employ. As long as a multiemployer bargaining relationship exists, league-imposed restraints on player labor markets should easily meet the Court's other conditions. The Brown holding, therefore, effectively enables leagues in every sport to be as free of antitrust constraints in order to control player mobility and salaries as Major League Baseball has been under its special, long standing antitrust exemption.

How one greets Brown inevitably will depend in part on how one views the antitrust challenges that players have made against such league-imposed labor market restraints as restrictions on mobility between teams,' rookie drafts,8 and salary caps.' Those individuals who think that the antitrust laws should be concerned only with restraints on product markets, and not with restraints on input markets in general or with labor markets in particular, may welcome Brown's exemption of labor market restraints." Those individuals who think that the labor market restraints typically imposed by sports leagues are reasonable under an antitrust analysis that weighs heavily the contributions of such restraints to maintaining athletic balance that enhances the league's competitiveness with other forms of entertainment also may welcome the decision." Others who believe that the antitrust laws should protect a player's negotiation of a free-market wage for any extraordinary services the player provides should give Brown a cold reception. This should be true for those concerned with the ultimate impact on the sports product of restraints discouraging talent development and for those concerned with insuring the extraction of a "just" wage for labor from a cartel of employers.

Regardless of their inclinations on these ultimate issues of antitrust law, however, both sports fans and lawyers (including those who are both), have reason to lament the result in Brown. For reasons elucidated in the final section of this Article,14 sports fans interested primarily in uninterrupted presentations of athletic competition are likely to be disappointed by more work stoppages in professional sports as a result of Brown. For lawyers, whether sports fans or not, the Brown decision should be most troubling because it failed to provide a proper clarification of how antitrust law should accommodate federal labor law. The accommodation that Brown did articulate sacrificed antitrust goals to a degree unnecessary to the service of labor law goals.

As explained more fully below, in order to protect established and legally approved multiemployer collective bargaining in myriad industries other than sports, the Court properly rejected the players' lawyers' formulation of a limited antitrust exemption that would not have protected the concerted employer action challenged in Brown. The Court, however, could have found that the challenged concerted action in Brown was not exempt from antitrust challenge under a different theory that would not have threatened multiemployer bargaining in any industry. That theory would have distinguished between joint employer actions in most industries designed to resist union efforts to use collective employee power to obtain supracompetitive wages, and those joint employer actions, as in the sports industry, unilaterally to impose restraints on free, individual employee bargaining.

As a result of Brown, individuals whose special, differentiated talent would enable them to achieve extraordinary wages in a free, competitive labor market will have to make an unnecessary choice between two sets of statutory rights, those secured by federal labor laws and those secured by antitrust laws. In the near term, this choice may be imposed only on professional athletes, who both are interested in the benefits of multiemployer collective bargaining and also confront joint employer schemes to restrict their labor market. 16 In the longer term, however, the choice demanded by Brown may also unnecessarily and improperly constrain others with differentiated talent in the entertainment industry. Moreover, the Court's failure in Brown to clarify the extent to which labor law requires the accommodation of antitrust law could lead to a further unnecessary expansion of the labor exemption and consequential sacrifice of antitrust goals.

Link to Publisher Site Link to Publisher Site (BU Community Subscription)



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.