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12-25-2012, 07:55 PM
Bob b smith
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Originally Posted by kdb209 View Post
Brown v. Pro Football has little to do with the current situation. It just extended the Non-Statutory Labor Exemption to cover terms imposed after an Impasse.

The timeline of NFL cases:

Mackey v NFL (1976): threw out the Rozelle rule, ruling it was not the product of bona fide arm’s-length collective bargaining. It set out the three prong test used to determine the extent of the Non-Statutory Labor Exemption.

1) the restraint on trade must primarily affect only the parties to the collective bargaining agreement;
2) the agreement must concern a mandatory subject of collective bargaining; and
3) the agreement must be the product of bona fide arm’s-length bargaining.

Powell v NFL (1989): held that the Non-Statutory Labor Exemption still holds after the expiration of a CBA, even after an Impasse was declared. It was after Powell that the NFLPA disclaimed and began the McNeil case.

McNiel v NFL (1992): Judge Doty rules that the NFL is no longer protected by the Non-Statutory Exemption and allows a jury trial. Jury awards damages.

Brown v Pro Football (1996): Upholds that the Non Statutory Exemption applies to terms imposed after an Impasse.

Of course, none of these precedents -except Judge Doty's trial court ruling are applicable if the NHLPA disclaims/decertifies.

I agree with the first paragraph in bold. However, I find the Supreme Court's last paragraph in Brown leaves little wiggle room for the NHL... It's in 3 parts:

1- In some cases, the antitrust exemption doesn't apply.

"Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process."

2-The Supreme Court then suggests two cases where it wouldn't apply.

2.1- Decertification

"See, e. g., 50 F. 3d, at 1057 (suggesting that exemption lasts until collapse of the collective-bargaining relationship, as evidenced by decertification of the union);

2.2.- Impasse ++

"El Cerrito Mill & Lumber Co., 316 N. L. R. B., at 1006-1007 (suggesting that "extremely long" impasse, accompanied by "instability" or "defunctness" of multiemployer unit, might justify union withdrawal from group bargaining)."

3- The Labor Board's decision to accept a Dissolution will be crucial

"We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate for us to do so without the detailed views of the Board, to whose "specialized judgment" Congress "intended to leave" many of the "inevitable questions concerning multiemployer bargaining bound to arise in the future." Buffalo Linen, 353 U. S., at 96 (internal quotation marks omitted); see also Jewel Tea, 381 U. S., at 710, n. 18."

Then there's the issue it affirms a Court of Appeal Judgment that included the following...

"In our view, the nonstatutory labor exemption requires employees involved in a labor dispute to choose whether to invoke the protections of the NLRA or the Sherman Act. If employees wish to seek the protections of the Sherman Act, they may forego unionization or even decertify their unions. We note that the NFL players took exactly this latter step after the Eighth Circuit's Powell decision. See Releasing Superstars, supra, at 883 (describing NFLPA decertification after Powell )... We do not mean to encourage this practice, but we believe that employees, like all other economic actors, must make choices. If they choose to avail themselves of the advantages of the collective bargaining process, their protections are as defined by the federal labor laws. "

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