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No.11‐21517 ______________________________________________

Inthe

SUPREMECOURTOFTHE

UNITEDSTATESOFAMERICA

______________________________________________

MATTSARACEN,TIMRIGGINS,LANDRYCLARKE,JASONSTREETandRAYTATUM, individuallyandonbehalfofallotherssimilarlysituated

PLAINTIFFS‐PETITIONER

versus

NATIONALBASKETBALLASSOCIATION DEFENDANT‐RESPONDENT. ________________________________

ONWRITOFCERTIORARIFROMTHEUNITEDSTATESCOURT

OFAPPEALSFORTHEEIGHTHCIRCUIT ________________________________

Team 30

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QUESTIONS PRESENTED

1. Whether the Norris-LaGuardia Act prohibits the district court from issuing an injunction to enjoin the NBA lockout.

2. Whether the NBA lockout is protected from antitrust scrutiny by the nonstatutory labor exemption.

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TABLE OF CONTENTS

Table of Authorities……………………………………………………………………….4 Statement………………………………………………………………………………….5 Summary of Argument……………………………………………………………………6 Argument

I. The Norris-LaGuardia Act was Given Board Language to Keep Federal Courts Out of the “Labor Injunction Business”……………………………………….7

A. The Current NBA Lockout Fits Within Section 13 of the Norris-LaGuardia Act’s Definition of a Labor Dispute………………………………………..9

B. The Norris-LaGuardia Applies to this Dispute Even Though the Players’ Union is Nonexistent……………………………………………………...11

C. The Norris-LaGuardia Act Bars This Court from Issuing an Injunction to End the Lockout…………………………………………………………..13

II. The NBA’s Lockout is Shielded From Antitrust Scrutiny Based on the

Nonstatutory Labor Exemption………………………………………………14 A. The NBAPA’s Disclaimer of Interest in Representing the NBA Players was

not Sufficient to End the Collective Bargaining Relationship and Therefore the Nonstautory Labor Exemption Remained in Effect…………………..15

B. The Owners’ Lockout Concerns A Mandatory Subject of Collective Bargaining Because it Affects the Players’ Right To Work, Their Wages, and The Terms and Conditions of Their Employment……………………21

C. The Owners’ Lockout Affects Subjects Bargained for By Both Parties Throughout the Collective Bargaining Negotiations Making Them Products of Bona Fide Arms-Length Bargaining…………………………………...22

Conclusion……………………………………………………………………………….23

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TABLE OF AUTHORITIES

Cases:

Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. Co., 353 U.S. 30 (1957)……………….9

Brady v. National Football League, 644 F.3d 661 (8th Cir. 2011)……………….10,11,12

Brown v. Pro Football, Inc., 518 U.S. 231 (1996)…………………………………...17,18

Burlington Northern R. Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429 (1987)……………………………………………………………………………..7,8,9

District 29, United Mine Workers v. New Beckley Mining Corp., 895 F.2d 942 (4th Cir. 1990)…………………………………………………………………...……………….…9

Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921)…………………..……….7,8

Mackey v. National Football League, 543 F.2d 606 (8th Cir. 1976)……………...15,21,22

Marine Cooks & Stewards v. Pan S.S. Co., 362 U.S. 369 (1960)………………………7,8

McNeil v. National Football League, 790 F.Supp. 871,1358 (D. Minn. 1991)………19,20

New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 560 (1938)……………11,12

NLRB v. Gissel Packing Co., 395 U.S. 575, 596 (1969)………………………………...20

Powell v. National Football League, 930 F.2d 1293, 1303 (8th Cir. 1989)………15,16,17

West Gulf Maritime Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721 (5th Cir. 1985)……13

Statutes:

15 U.S.C. §1……………………………………………………………………………...14

29 U.S.C. § 101……...……………………………………………………………………7

29 U.S.C. § 104…………..………………………………………………………………13

29 U.S.C. § 113………………………..………………………………………...9,10,11,13

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STATEMENT

1. This is an action filed by five National Basketball Association (NBA) players

(Players) against the NBA. R. at 3. The NBA contains thirty separately owned teams and

serves as a multi-employer bargaining unit. R. at 3.

2. The rules and conditions of the NBA are contained within a collective bargaining

agreement (CBA) negotiated between the NBA Players’ Association (NBAPA) and the

NBA. R. at 3. The most recent CBA was due to expire on October 11, 2011 at 11:59pm

after the NBA opted out of an additional two-year extension of the CBA. R. at 3. The

NBA and NBAPA had bargained over a new CBA for two years, prior to the deadline.

The NBA and NBAPA negotiated up to October 11, to no avail. R. at 4.

3. During negotiating, the NBAPA took a poll of its players to see it a majority wished to

disband the NBAPA and pursue individual claims against the league if no CBA was

reached. R. at 3. The majority of players voted to support whatever the NBAPA thought

was in their best interests. R. at 4. The NBAPA decided to disclaim its interest as a

players’ union and informed the NBA eight hours before the expiration of the CBA. R. at

4. The NBAPA notified the National Labor Relations Board (NLRB) that it was no

longer a labor organization and filed an application to the IRS to be considered a

professional organization rather than a players’ union. R. at 4. Furthermore, the NBAPA

amended its bylaws to prevent any members from collective bargaining with the NBA,

teams and agents. R. at 4.

4. Upon receiving the disclaimer notice, the NBA filed an unfair labor practice charge

with the NLRB. R. at 4. The NBA instituted a league-wide lockout after the October 11

expiration of the CBA. R. at 4. The lockout was to become effective on October 12. R. at

4.

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5. On October 12, the plaintiffs filed an antitrust claim seeking to enjoin the NBA’s

lockout. R. at 4. The district court granted the injunction but the court of appeals

reversed.

SUMMARY OF ARGUMENT

1. The Norris-LaGuardia Act bars federal courts from issuing injunctions in matters

growing out of labor disputes. The NLGA has broad application because Congress was

intent on removing federal courts from the economic interplay between capital and labor.

Application of the NLGA does not hinge on the existence of a labor, which is apparent

through a plain reading of the statute. Additionally, the NLGA applies equally to

employers and employees as long as the dispute centers around negotiating terms of an

agreement. The NBA and NBPA are involved in a dispute determine the terms of a new

collective bargaining agreement. Although, the union has decertified, the NLGA still

applies because the dispute centers on the negotiation of terms. In order entice the

players to negotiate, the NBA has instituted a lockout. A lockout is a protected labor

tactic under the NLGA and precludes federal courts from issuing injunctions.

2. The nonstatutory labor exemption protects the NBA lockout from antitrust scrutiny.

The lockout satisfies the three elements necessary for invoking the exception. The only

element in contention is whether a collective bargaining arrangement still existed

between the NBA and the NBAPA. Although the NBAPA disclaimed their

representative interest, it did so acting as the representative body for the players. The

NSLE was created out of federal labor law to promote ongoing negotiations and keep

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labor disputes out of antitrust courts. A lockout initiated in the course of bargaining is

just the type of action the NSLE was meant to protect.

ARGUMENT

I. The Norris-LaGuardia Act was Given Board Language to Keep Federal Courts Out of the “Labor Injunction Business”

The Norris-LaGuardia Act (NLGA) was promulgated in 1932 to limit the

injunctive powers of the federal court when a labor dispute is involved. Marine Cooks &

Stewards v. Pan S.S. Co., 362 U.S. 369 (1960). The NLGA was promulgated in response

to the weak effect that the Clayton Act had on limiting federal courts issuing injunctive

relief in matters involving labor disputes. Duplex Printing Press Co. v. Deering, 254 U.S.

443 (1921). Speaking on the need to promulgate the NLGA, Representative LaGuardia

stated, “If the courts had not emasculated and purposely misconstrued the Clayton Act,

we would not today be discussing an anti-injunction bill.” Burlington Northern R. Co. v.

Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 439 (1987)(Citing 75

Cong.Rec. 5478 (1932)). Therefore, Congress wanted to expand the limited effect that

the federal courts had given to the Clayton Act. Duplex at 443. Congress accomplished

this expansion by incorporating Section 1 of the NLGA, which states, “No court of the

United States…shall have jurisdiction to issue any restraining order or temporary or

permanent injunction in a case involving or growing out of a labor dispute, except in a

strict conformity with the provisions of this chapter.” 29 U.S.C. § 101.

A plain reading of Section 1 of the NLGA illustrates Congress’s use of broad

terms to expand the applicability of the Clayton Act. Marine at 369. Congress wanted to

expand the limited scope of the Clayton Act because it was dissatisfied with the

ineffectiveness of the Clayton Act in its ability to remove federal courts from the “labor

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injunctions business.” Id at 369. The ineffectiveness of the Clayton Act was typified in

Duplex, where the Court narrowly defined the employer-employee relationship to apply

only to the primary labor dispute and granted an injunction to limit the effect of a

secondary boycott. Id. at 443. The Clayton Act’s limited scope frustrated Congress’

intent to limit the federal courts equitable powers enjoining labor strikes and similar labor

tactics, so Congress enacted the NLGA with its broad language. Burlington at 438.

The court of appeals was clearly correct with its interpretation of the NLGA’s

board application to labor disputes. Congress was dissatisfied with the ineffectiveness

the Clayton Act in limiting federal courts from issuing injunctions in labor disputes.

Congress’s dissatisfaction developed from the narrow application given by the federal

courts such as the limited scope applied in Duplex. In promulgating the NLGA,

Congress’s intent was to expand the limited effect of the Clayton Act. The federal courts

would no longer have equitable powers in labor disputes, except those specifically set out

in the NLGA. Therefore, federal courts would be out of the “Labor Injunction Business.”

With federal courts having limited equitable powers in labor disputes, the NBPA should

not be able to run to the courthouse and seek the aid of judges. Rather the dispute should

be settled at the negotiating table. The NBPA should approach the NBA and not the

courts to decide the terms of the contract. Only through the mutual bargaining of both

parties can this dispute end.

Conversely, the Petitioner will argue that the scope of the NLGA is narrowly

limited to a pro union reading, meaning that the NLGA is a policy promulgated to keep

employers from running to the courthouse to enjoin labor strikes. However, Petitioner

misconstrues the meaning of the act as advanced by this Court in Marine, which clearly

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states that the NLGA is to be given a broad scope. The NLGA is to be given a broad

scope because Congress’s true intentions were to keep courts from deciding labor

disputes, which the Clayton Act failed to do. Congress wanted the disputes to be settled

at the negotiating table and allow the economies of a free market decide the terms of a

contract. Congress was intent on keeping judicial oversight limited in labor disputes.

Therefore, the NBA and NBPA should be free from judicial intervention and allowed to

freely negotiate the terms of the new collective bargaining agreement.

A. The Current NBA Lockout Fits Within Section 13 of the Norris-LaGuardia Act’s Definition of a Labor Dispute

With the broad language aimed at limiting the scope of the federal court’s

equitable powers to grant injunctions in labor disputes, the NLGA applies equally to

employers and employees. Burlington at 439. The NLGA was Congress’s attempt “to

prevent the injunctions of the federal courts from upsetting the natural interplay of the

competing economic forces of labor and capital.” Bhd. of R.R. Trainmen v. Chi. River &

Ind. R.R. Co., 353 U.S. 30, 40 (1957). Therefore, to determine the applicability of the

NLGA, the dispositive inquiry is whether or not there is a labor dispute between labor

and capital and not which party is seeking the injunction. District 29, United Mine

Workers v. New Beckley Mining Corp., 895 F.2d 942, 944-47 (4th Cir. 1990).

Therefore, the court should look to the NLGA to define labor dispute, specifically

Section 13(a), which states,

A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation…whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees.

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29 U.S.C. § 113(a). Additionally, the court should apply Section 13(c), which further

defines a labor dispute, which “includes any controversy concerning terms or conditions

or employment, or concerning the association or representation of persons in negotiating,

fixing, maintaining, changing, or seeking to arrange terms or conditions of employment,

regardless of whether or not the disputants stand in the proximate relation of employer

and employee.” 29 U.S.C. § 113(c).

Persons engaged in the same industry include owners of sport teams and the

teams’ players. Brady v. National Football League, 644 F.3d 661, 672 (8th Cir. 2011).

In Brady, the National Football League and the its thirty-two separately-owned clubs

decided to institute a lockout after the collective bargaining agreement lapsed. Id. at 663.

In response to the League’s labor tactic, the players’ union, who represented the

individual players, decided to disband and individually litigate the issue. Id. at 663. The

individual players sought to enjoin the League and the clubs from instigating the lockout,

as the lockout would constitute a group boycott and price fixing in violation of the §1 of

the Sherman Act. Id. at 663. The court in Brady held that even though the union had

disbanded, the NLGA forbade the court from issuing an injunction prohibiting the

lockout. Id. at 682. The courts were barred from enjoining the lockout because the

dispute involved labor and capital negotiating the terms of a collective bargaining

agreement and the NLGA barred the courts from involvement. Id. at 674.

Applying the plain meaning of the NLGA, this Court should uphold the court of

appeal’s decision that the NLGA encompasses the current dispute. This dispute grows

out of labor because it involves labor and capital. The NBA and its collective clubs

represent the capital and the individual players are the labor. Additionally, the NBA and

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the players are involved in the same trade or industry. Both are in the industry of

providing professional basketball for fans in their respective cities, just as the NFL and its

players are responsible for supplying fans with professional football. Additionally, this

dispute involves an association of employers, the NBA and a collection of teams, and

individual employees, the players who are representing other players similarly situated.

Both the NBA and its players are currently involved in negotiating the terms of the

collective bargaining agreement. As in Brady, the union has decertified and the players

argue that they are no longer at the negotiating table, which is a sham. This move by the

players is an attempt to pull the wool over the eyes of the court. As in Brady, the dispute

remains in full force, as the NBA continues to negotiate a new contract. Therefore, the

NLGA applies to the current dispute and this Court should uphold the court of appeal’s

decision.

B. The Norris-LaGuardia Applies to this Dispute Even Though the Players’ Union is Nonexistent

Because Section 13(c) states that the disputants do not have to be in an employer-

employee relationship, a labor dispute can still arise even if a union is not present. Brady

at 671. Additionally, Section 13(a)(1) states that a labor dispute can involve one or more

employees or associations of employees and does not add the requirement that the

employees be unionized employees. Id. at 671. Thus, the clear intention of Congress in

executing the NLGA was not to require that a union be present in the labor dispute, but

that the dispute involves persons interested in affecting the terms of employment. New

Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 560 (1938). In New Negro

Alliance, the question presented to this Court was whether or not the NLGA restricted the

district court from issuing an injunction when an employer-employee relationship did not

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exist. Id. at 553. This Court held that the applicability of the NLGA does not depend on

whether or not an employer-employee relationship exists, but that the parties have an

interest in resolving labor terms. Id. at 560-61.

A plain reading of the NLGA does not require the involvement of a union in the

dispute for the NLGA to be applicable. Section 13(a)(1) clearly states that the dispute

can involve an association of employers and individual employees or more than one

employee. The text states nothing the form of requiring a union employee be involved in

a labor dispute. Rather it states an “employee,” which is exactly what this dispute

involves. The NBPA has decertified and therefore, the players are left to negotiate on

their own. Additionally, Section 13(c) states that the disputants do not have to be in an

employer-employee relationship. Rather as this Court stated in New Negro Alliance, the

dispositive inquiry is whether or not the disputants are interested in the terms of

employment. Clearly, both the NBA and the individual players have an interest in

negotiating the terms of the agreement. Therefore, the NLGA applies to the current

negotiations between the NBA and individual players and bars injunctive relief.

Conversely, Petitioner will argue that in order to be under the umbrella of the

NLGA, a union must be present in the dispute. Petitioner’s contention is that even

though the NLGA has been given a broad application to labor disputes, disputes still

requires the presence of a union. Additionally, Petitioner narrowly reads the decision in

New Negro Alliance because Petitioner believes that even though the lawsuit did not

involve a union, a union still had a fight in the dispute. However, Petitioner misapplies

the holding of New Negro Alliance because the crux of the decision was that a party has

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a labor interest, an interest in the negotiating of terms. Truly the Petitioner does not

argue that the players are not interested in negotiating the terms of a new contract.

C. The Norris-LaGuardia Act Bars This Court from Issuing an Injunction to End the Lockout As the League used in Brady, a lockout is “a refusal by an employer to furnish

available work to its regular employees.” Id. at 674. A lockout is a tool used by an

employer for the purpose of either resisting the employees’ demands or gaining a

concession. Id. at 674. This tool fits within the framework of Section 4(a) of the NLGA,

which states,

No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute from doing, whether singly or in concert, any of the following acts: (a) Ceasing or refusing to perform any work or to remain in any relation of employment.

29 U.S.C. § 104(a). Section 4(a) “forbids courts to enjoin work stoppages in any case

involving or growing out of any labor dispute. West Gulf Maritime Ass’n v. ILA Deep

Sea Local 24, 751 F.2d 721, 726 (5th Cir. 1985). Although Section 4(a) affords less

protection to employers, Congress did not strip employers of all power. Brady at 678.

Just as a union can employ a strike to induce bargaining for a new contract, an

employer can institute a lockout. A lockout is a labor dispute tool aimed at refusing to

remain in any relation of employment. The NBA and its collective club owners are

curtailing their involvement with the players because of the cessation of the collective

bargaining agreement. Their goal is to gain concession by the players and bring the

players back to the negotiating table. Pursuant to Section 4(a), the court cannot issue an

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injunction to restrain this labor dispute tactic. As in Brady, the NLGA precludes this

Court from issuing an injunction.

In the alternative, Petitioner argues that Section 4(a) only protects the actions of a

union. Section 4 extends to those labor negotiating tactics, such as strikes, employed by

unions. The Petitioner misconstrues Section 4 as being pro-labor statute. However, this

Court has continued to give a broad application of this statute to all matters in a labor

dispute. The statute applies even-handed to both the capital and labor. Because the

statute applies to both capital and labor, the statute protects tools employed by the capital

to entice negotiation between capital and labor. These tools include lockouts. Therefore,

the NLGA bars this Court from issuing an injunction, which restricts the NBA from

instituting a lockout.

II. The NBA’s Lockout is Shielded From Antitrust Scrutiny Based on the

Nonstatutory Labor Exemption Section 1 of the Sherman Act reads: “Every contract, combination in the form or

otherwise, or conspiracy in the restraint of trade or commerce among the several states or

with foreign nations is declared to be illegal.” 15 U.S.C. §1. The respondent concedes

that initiating a league-wide lockout is in violation of the Sherman Act. The respondent,

however, contends that the lockout was implemented in the course of collective

bargaining and is therefore shielded from antitrust liability by the nonstatutory labor

exemption (NSLE).

The NSLE exempts certain anti-competitive union-employer activities from

antitrust liability to promote ongoing negotiations and remove instability and uncertainty

from the bargaining process. In order to qualify for the NSLE, an agreement must satisfy

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three elements: First, the restraint of trade primarily affects only the parties to the

collective bargaining agreement; Second, the agreement concerns a mandatory subject of

collective bargaining, and; Third, the agreement is a product of bona fide arms-length

bargaining. Mackey v. National Football League, 543 F.2d 606, 614 (8th Cir. 1976).

This brief will first demonstrate that the NBAPA’s disclaimer of interest was

insufficient to completely extinguish the collective bargaining relationship with the NBA.

Additionally, it will explain how the NSLE was borne out of federal labor policy and

meant to promote continued and unimpeded bargaining. Second, it will establish that the

NBA’s lockout affects mandatory subjects of collective bargaining. And lastly, it will

illustrate how the CBA was within bona fide arms-length bargaining between the NBA

and NBAPA. Based on these the satisfaction of these three elements, the conclusion will

explain that the NSLE was meant to apply to situations just like this.

A. The NBAPA’s Disclaimer of Interest in Representing the NBA Players was not Sufficient to End the Collective Bargaining Relationship and Therefore the Nonstautory Labor Exemption Remained in Effect.

An existing collective bargaining agreement is not always necessary to invoke the

NSLE if the parties continue to negotiate and use economic tools to bring about

legitimate compromise. Powell v. National Football League, 930 F.2d 1293, 1303 (8th

Cir. 1989). In Powell, nine NFL players and the NFL Players Association argued that the

NFL’s maintenance of a “Right of First Refusal/Compensation” policy, contained in a

1982 collective bargaining agreement, was an unlawful restraint on free trade once the

agreement expired. Id. at 1295-1296. More specifically, the players argued that once the

1982 agreement expired, the NSLE no longer applied and the agreement became subject

to antitrust liability. Id. at 1295. The Powell court opined that the end of a collective

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bargaining agreement does not necessarily destroy the NSLE. Id. at 1301. While refusing

to name a specific point in time when the NSLE might expire, the Powell court pointed

out that it is Congress’s intention that labor disputes be governed by the National Labor

Relations Board and not by antitrust courts. Id. at 1302. The court held that as long as an

ongoing collective bargaining relationship exists, the NSLE remains in effect. Id. at 1303.

In the present case, the NBA and NBAPA continued their negotiations right up to

the expiration of the collective bargaining agreement. The NBAPA’s decision to disclaim

its representative authority was simply used for bargaining leverage in the course of

ongoing negotiations. The disclaimer and subsequent lockout were not sufficient to

extinguish the parties’ ongoing bargaining relationship. As the Powell court explained,

the NSLE is meant to shield these types of collective bargaining maneuvers to be

governed by the NLRB and not the antitrust courts.

The Players, in the present case, argue that the NSLE expired upon the NBAPA’s

disclaimer of interest, unlike the players in Powell who focused on the expiration of the

CBA. It is clear, however, that Powell was mainly concerned with whether an ongoing

bargaining relationship still exists beyond the apparent end of one. Similar to the

situation in Powell, it appeared as if the collective bargaining relationship was terminated

in the present case. The NBAPA’s disclaimer of interest, however, came just eight hours

before the expiration of the collective bargaining agreement. Prior to the disclaimer

notice, the NBAPA and NBA had bargained for two years over a new CBA. The

NBAPA’s actions to disclaim interest appear insufficient to completely extinguish a two-

year bargaining relationship with the NBA.

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The bargaining relationship continues and the NSLE applies if there are any

claims pending with the NLRB. Id. at 1303-1304. The Powell court held that allowing

the players to file an antitrust claim would be subversive to congressional policy. Id. The

Powell court laid forth several options that either team could use upon reaching a

stalemate: continued bargaining, use of economic force and to filing a claim with the

NLRB. Id. The court held that if there is a possibility the issue could be commenced

before the NLRB then the bargaining relationship continues until final resolution. Id.

On October 12, the day after the disclaimer and expiration of the CBA, the NBA

filed an unfair labor practice claim with the NLRB. The NBA alleged that the NBAPA’s

disclaimer was merely a sham used as an economic tool in the bargaining process. The

Powell court explicitly listed filing a claim with the NLRB as an option in a labor

dispute. According to Powell, since the claim remains unsettled, the bargaining

relationship between the parties still exists and the exemption applies to the lockout.

The NSLE continues to apply as long as antitrust intervention would hamper the

ongoing collective bargaining negotiations. Brown v. Pro Football, 518 U.S. 231, 250

(1996). In Brown, the NFL Players’ Union and the Team Owners bargained over a wage

issue until they reached impasse. Id. at 233. Upon reaching impasse, the owners

unilaterally imposed their last offer and the players subsequently filed an antitrust

lawsuit. Id. The court held that impasses are often temporary and indistinguishable from

bargaining tactics. Id. at 245. Furthermore, employers risk antitrust liability if they

believe the impasse had not been reached or unfair labor charges if they stall

negotiations. Id. at 246. This frustrates the purpose of the exemption, which is to

promote continued bargaining and negotiation. Id. at 241. The court reasoned that it is

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necessary to focus on the exemption’s rationale rather than specific language that runs

contrary to it. Id. at 243. The court also reasoned that the dispute had taken place during

and immediately after the collective bargaining relationship and that it grew directly out

of that relationship. Id. at 250. The court noted that the NSLE would not always apply if

there has been a sufficient time and distance from the collective bargaining process. Id.

Furthermore, the Brown court ruled that the NSLE is not restricted to employer-

union agreements in collective bargaining. Id. at 243. Such a restriction, the court

reasoned, would fail to encompass court-approved unilateral actions such as lockouts that

can be used as tools in the bargaining process. Id. at 244. The court ruled that both

parties consent to an agreement is unnecessary to invoke the NSLE because no one would

expect an opposing party to consent to such measures as a lockout. Id. at 243-244.

In the present case, the NBA initiated a lockout as a bargaining tactic in a labor

dispute. Similar to the NFL in Brown, the NBA made its strategic move once

negotiations with the players had stalled. In fact, the NBAPA made its own strategic

move when it disclaimed representation on the day of the expiration of the collective

bargaining agreement. Both the NBA and the NBAPA invoked these tactics to leverage

their bargaining position. These strategies, like those in Brown, should be free from

antitrust liability because they promote continued bargaining and negotiation. The

NSLE’s rationale is to protect the same sort of ongoing bargaining that occurred in the

present case. Although the lockout was unilaterally imposed by the NBA, it is still

protected under the NSLE as a recognized tool in labor disputes.

The petitioner may argue that the Brown decision is not applicable to the present

case because it dealt with an impasse and not a union disclaimer. Although an impasse is

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a legally recognized issue in collective bargaining, Brown’s reasoning has a broader

application. Looking at the exemptions rationale, as the Brown court directed, it is clear

that its application is based on the particular facts of each case rather than impasse alone.

The Brown court’s decision did not hinge on the term “impasse” but rather on the facts of

the specific conduct at hand.

The existence of a collective bargaining relationship for purposes of the NSLE

depends on whether the majority of the union supports a single unit for bargaining

purposes. McNeil v. National Football League, 790 F. Supp. 871, 884 (D. Minn. 1991).

The McNeil court held that NLRB decertification and judicial determination are not

solely determinative of whether a collective bargaining unit still exists. Id. Rather, the

determination hinges on whether the majority of employees still support a union as their

representative in collective bargaining negotiations. Id. The McNeil court ruled that the

triggering event destroying the NSLE is when the collective bargaining relationship

between the players’ union and employers ceases to exist. Id.

In the present case, the NBAPA took polls before the expiration of the collective

bargaining agreement to see if a majority of players wanted to disband the union. The

majority of players did not directly vote to disband the union. Instead, the majority of

players voted to endorse whatever decision the NBAPA thought was the best.

Essentially, the players turned to their union and asked it to act as their agent in choosing

a new course of action. Although the NBAPA chose to disclaim interest, it did so on

behalf of the players’ acting as their representative. This is the type of action that McNeil

addressed. By placing their interests in the hands of the NBAPA, the players continued

to endorse a union to bargain on their behalf. The disclaimer was a strategic move

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implemented by the NBAPA. Under McNeil, the Players were still using the NBAPA to

bargain and therefore the collective bargaining relationship still existed.

The Players may argue that regardless of how the disclaimer decision was

reached, it is a disclaimer nonetheless. It is true that the McNeil decision was not based

on temporal restrictions but rather on the relationship between the bargaining parties.

What McNeil established, however, was that the word “disclaimer” is insufficient, by

itself, to extinguish the bargaining relationship. If the NBAPA continued to serve as the

players’ representative beyond the disclaimer notice then the NSLE still applied. In the

present case, the NBAPA bargained for two years up until the day of the CBA expiration.

It does not appear that the NBAPA’s disclaimer alone was enough to completely

extinguish the parties’ multiyear bargaining relationship.

An Employer risks unfair labor charges if it refuses to collectively bargain with a

union. NLRB v. Gissel Packing Co., 395 U.S. 575, 596 (1969). There are no specific

requirements to successfully establish union representation. Id. A union entity must

simply offer convincing evidence that the majority of employees support it as their

representative. Id. Upon a satisfactory showing of this evidence, the employer must

engage in collective bargaining or risk unfair labor liability. Id.

The Players argue that a disclaimer of interest is not simply a bargaining tactic

because by doing so, they abandon certain labor rights. Specifically, they argue that after

dissolution, the NBA can impose unilateral conditions that do not violate antitrust laws.

With this murky standard for union recognition, however, the NBA faces both antitrust

and unfair labor liability if they misinterpret the union’s status. This uncertainty over the

union’s status could lead to stalled negotiations. In the present case, a majority of players

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voted in favor of letting the NBAPA act in their best interests. This election could appear

to be affirming union representation even though the union chose to disclaim interest.

The election puts the NBA in a precarious situation to the advantage of the players. The

NSLE was created to remove this sort of uncertainty from the bargaining relationship to

promote the furtherance of bargaining.

A common theme throughout all the cited cases is the policy reasons for the

creation of the NSLE. The NSLE has been accepted to promote continued negotiations

and to prevent uncertainty and instability from entering the bargaining process.

Furthermore, courts have a preference for labor disputes to be settled by the NLRB rather

than antitrust courts, as it is better apt to handle the niceties of labor law. This policy

would be ineffective if a union could extinguish a multiyear bargaining relationship

simply by disclaiming interest the day the agreement is due to expire. With this freedom,

unions could introduce just the sort uncertainty into the bargaining process that the NSLE

was created to prevent.

B. The Owners’ Lockout Concerns A Mandatory Subject of Collective Bargaining Because it Affects the Players’ Right To Work, Their Wages, and The Terms and Conditions of Their Employment.

A mandatory subject of collective bargaining is determined by its practical effect

on the parties involved. Mackey v. National Football League, 543 F.2d 606, 615 (8th

Cir. 1976). The Mackey court cited §8(d) of the National Labor Relations Act, which

states that mandatory subjects of collective bargaining pertain to, “wages, hours, and

other terms and conditions of employment.” Id. In Mackey, the court examined whether

the NSLE applied to the “Rozelle Rule” which dealt with NFL free agency. Id. at 610-

611. On its face, the “Rozelle Rule” did not fall under a mandatory subject as set forth in

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the NLRA. The court, however, held that the free agency restrictions affected players’

salaries and therefore was indirectly a mandatory subject of collective bargaining. Id. at

615.

Although the NBA’s lockout is does not directly fall under the NLRA’s definition

of a mandatory subject of collective bargaining, it affects several issues which do. The

lockout affects the players’ ability to work and earn wages among other terms and

conditions of employment. Like the “Rozelle Rule” in Mackey, the lockout indirectly

affects the mandatory subjects in the purview of §8(d) of the NLRA. Furthermore, the

lockout was implemented specifically to affect these mandatory subjects of collective

bargaining.

C. The Owners’ Lockout Affects Subjects Bargained for By Both Parties Throughout the Collective Bargaining Negotiations Making Them Products of Bona Fide Arms-Length Bargaining.

To qualify as a product of bona fide arms-length collective bargaining, both

management and labor must have equal bargaining power over the agreement in question.

Mackey, 543 F.3d at 615-616. In Mackey, the court found that the players stood in an

unequal bargaining position with the NFL concerning the “Rozelle Rule.” Id. The court

reasoned that the “Rozelle Rule” remained relatively unchanged since the NFL first

introduced it in 1963. Id. Ultimately, the court held that the “Rozelle Rule” was

unilaterally imposed by the NFL and failed to be a product of bona fide arms-length

bargaining. Id.

In the present case, the owners and the NBAPA negotiated over a new collective

bargaining agreement. Collective bargaining is just that, both sides bargain over an

agreement. Unlike the negotiations in Mackey, there is nothing in the record to reflect

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that this collective bargaining was overly one-sided. Both sides negotiated up to the

expiration of the agreement and now both have implemented economic strategies.

CONCLUSION

The NLGA bars this Court from issuing an injunction enjoining the NBA from

instituting the lockout. The NLGA provides a shelter from judicial oversight when the

dispute grows out a discrepancy between capital and labor. A discrepancy between the

NBA and the NBPA arose when the NBA decided not to keep the former CBA. The

NBA wants to negotiate the terms and conditions of the new CBA. In order to entice the

cooperation of the players, which were formerly represented by the NBPA, the NBA

instituted a lockout. This lockout is a protected labor tactic under the NLGA, specifically

under Section 4(a). Therefore, this Court should remain free from the economic

interplays of a free market by refusing to issue an injunction and allow the NBA and

players to negotiate a new contract.

The NSLE shields the NBA lockout from antitrust liability. The lockout was

initiated just one day after the collective bargaining agreement expired. Although the

NBAPA had issued a disclaimer notice eight hours before the CBA’s expiration, it

continued to act as the players’ representative. There was not sufficient time and distance

to show that the collective bargaining relationship had ended. The NBA, like the players,

simply sought to implement a recognized economic tool to leverage their bargaining

position. Furthermore, the a majority of the players voted to give the NBAPA the

authority to do what it thought was in the players’ best interests, demonstrating that the

NBAPA continued to act on their behalf.

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The NSLE was created out of federal labor law and case precedent in an effort to

promote bargaining and keep labor disputes out of antitrust courts. Uncertainty and

instability in the bargaining process causes negotiations to stall for fear of liability. The

NSLE helps keeps this uncertainty out of the bargaining process and in turn, encourages

resolution. Based on the specific facts of the case and the policy behind the NSLE, it is

apparent that the NBA’s lockout should be shielded from antitrust liability.