An examination of the impact of labor laws on professional sports can be exhaustive, intensive, extensive, and, depending on your point of view, maddening, frustrating, or merely entertaining. However, the examination must conclude that the impact has been enormous as all of the truly memorable labor conflicts of the last fifteen or twenty years have been sports related. We can thank President Reagan for the air traffic controllers strike, which brought some relief from sports labor dominance of the media.

All of these sports related labor matters have involved unions that take their players out on strike or, infrequently, management that locks them out. Baseball, for example, has been struck in 1968, 1972, 1975, 1980, 1981, 1985, 1990, and 1994. There has been a lockout or two there, also. Basketball has just avoided a labor melt down when the NBA players refused to decertify their union. Football has had a series of strikes in 1974, 1982, and 1987, colossal court battles, games by replacement players, decertification, re-certification, and, now, an agreement. Hockey spent the first half of 1994-95 locked out and now has an agreement. The turmoil continues as baseball has yet to sign a collective bargaining agreement. Nowhere else in America do we find this concentration of labor turmoil.

All this labor activity has the National Labor Relations Act of 1935 as its legal and philosophical basis. We can include portions of the antitrust laws, especially Clayton 6 and 20, and the judicially developed doctrines of the non-statutory labor exemption as well, but it is the NLRA that is at the root of the problem..

Thankfully, the Teamsters have struck Ryder Truck and we may have a bus strike in Minneapolis soon. These job actions are classic labor confrontations that the National Labor Relations Board, its regional directors, ALJs, and courts all understand. The act itself contemplates this sort of activity and handles them well. They involve industrial companies and unions that fit the NLRA paradigm. Sports leagues do not fit.

In sports the incidence of labor conflict is rising. Nowhere do we find such an assortment of subtle labor twists as when the NLRA is applied to a sports scenario. Under the Act you may find that employers and employees seek to decertify a union, but only in sports do you a union decertifying itself. Also, the very idea of individual employees forming a union that supports their right to individual salary negotiations is unheard of. The Second Circuit has, in fact, denied an individual's claim that he was prevented from achieving his full free market value because of the collective bargaining agreement because it is at odds with and destructive of federal labor policy. However, that player, once he joined the union, was allowed to achieve his full market potential through individual bargaining under the collective bargaining agreement.⁽¹⁾

Not only does this type of negotiation exist in sports negotiations, but the law seems to be evolving to accommodate it. For example, the following took place last spring in a baseball matter. First, the existence of the obligation to negotiate mandatory subjects of bargaining was acknowledged, as was the concept that some other issues, such as interest arbitration, were permissive. The fact that interest arbitration was permissive was acknowledged as was the fact that salary arbitration was interest arbitration. The fact that either or both sides could waive a mandatory obligation was acknowledged, i.e., that individual contract negotiations could be pursued, but if the union withdrew its waiver, i.e. changed the contract before reaching impasse, such withdrawal was acceptable because the waiver was permissive, but if management withdrew its waiver, such alteration of the contract before reaching impasse was an unfair labor practice because the same practice was mandatory. Highly creative and novel interpretations of previously iron bound precedents were the norm in this matter, which introduced the notion that a permissive subject of bargaining became mandatory if the parties included it in a collective bargaining agreement. In fact, a judge granted an injunction for an act the General Counsel did not attempt to enjoin because he thought it was legal.

The reason for this situation is that professional sports leagues operate differently from other industries. Even other multi-employer bargaining units are different from their sports counterparts. Sports multi-employer bargaining units are "single" or "common"employers. Yet, if they try to bargain all terms and conditions, they will be stopped. The rules that decide most labor issues are overwhelmed by the sports scenario. Because of this, I will propose a tweaking of the act so that this turmoil can end.

This change in the Act is needed because sports are different. This difference lies in the fact that professional sports leagues must maintain an equality of competition among themselves that allows them to create a product that will be consumed by the public. In every other industrial situation, a self-contained company, even if part of a multi-employer unit, can operate by itself and does not need others to manufacture its product or provide its service. Ford can create a car without Chevrolet. They can both negotiate with the UAW and make agreements by which they can both prosper, but our Minnesota Twins cannot create a baseball game without another team. Unless that game is perceived to be of the highest quality and amongst perceived equals, consumers will not attend it, view it, listen to it or buy its products..

The conflicts that occur in professional sports occur because there, as opposed to anywhere else under the authority of the National Labor Relations Act, lies the league's need for restrictive agreements that maintains roster stability and provides for some measure of competitive balance. This elemental need is in competition with the player's organizing in unions, with all the power granted unions under the Act, for the purpose of protecting the player's individual rights. The player's request for free agency and his individual negotiations, are in competition with the very basic underpinnings of the union movement, which elevates the group over the interests of the individual.

Unions exist to focus power on the group. In unions, the individual's interests are subordinated to those of the group. All are to be treated equally. There is no doubt, for example, that there are workers at Chrysler today who could leave the union and make more than they are currently making. Others, of course, without the union, would be handled quite a bit differently and receive lower pay. Collectively, they all do better. In sports, however, the players act collectively, i.e. strike, or as individuals, i.e. free agents, whichever suits their purpose at the time. This is because, unlike that lesser of the two Chrysler workers mentioned above, there is no one more able to resist the economic weapons available to management than is the professional athlete. First of all, if they have played at the major league professional level for several years, they probably have earned several million dollars. Their unions have licensing contracts that provide $80,000 to over $100,000 annually to each player that is quite independent of the contract negotiated with their team. Some players, of course, have more income than their team. For example, Michael Jordan and Shaquille O'Neal run marketing companies that are not only bigger than some teams, but compete with those team's products in the same market place.

The essential factor in sports labor matters is that the industry requires unique treatment because of its unique nature. This uniqueness has been indicated by the way union members protect individual rights, compete with teams in the sports marketing business, while acting collectively. Further evidence of the uniqueness of the industry is the fact that no individual team can produce the product. In fact, it is difficult to define the product. It can be a single game or a season of games leading to a World Series. Nevertheless, no one team can produce even a single game. The essential factor in the production of the product is the creation of a perception of equality of competition among the various teams in a league. It takes two teams to produce a game, and the value of the game is in the perception by fans that the level of skill is very high, the teams are nearly equal, and the outcome is in doubt. In order to provide for stability and competitive balance, clubs in the various sports leagues have agreed to control the way by which amateur players are admitted to the professional ranks through a series of player drafts, and by controlling the method and time a player can be reserved on various under control lists before appearing on major league rosters. This system allows other teams to have access to players. Furthermore, teams share revenues and engage in joint marketing and promotional activities. These activities are designed to increase income and maintain competitiveness among the teams. Various leagues utilize these activities in differing degrees, but all use them for the stated purpose to some degree.

The labor agreements with the players' associations of the various leagues similarly seek to provide some sort of roster stability. The players' associations, on the other hand, seek to grant the players free agency of one form or another as early in the relationship as possible. In other words, they seek to use the act that creates collective bargaining to promote an employee's individual bargaining rights. As drafted, this factor, more than any other, shows how the NLRA does not work in the sports setting because of the changes made in its application.

The labor laws are designed to eliminate conflict by creating a balance between competing interests. The act has been successful in those areas where it was designed to apply, however, in sports there is a misfit, and the act tips the scales towards the employee. Remember, this is a situation where a "holdout" by a star can be more damaging than a general strike elsewhere. Both management and labor are the intended beneficiaries of the act. The Act, therefore, should be tweaked slightly to end the prolonged labor confrontations that exist in that small, but very influential industry.

The sports labor situation can be corrected by allowing courts and the National Labor Relations Board to use the following standards with respect to sports labor matters. In this scenario, a practice that would ordinarily be deemed an unfair labor practice must be judged, not by normal industrial standards, but by a new standard as follows:
 
 

In determining whether or not an act committed by a sports entity in collective bargaining is a violation of the National Labor Relations Act, the general counsel shall first look to whether or not the action taken promotes the competitive balance required by the leagues. In determining whether or not an act promotes competitive balance, the general counsel shall first look to the other methods employed by the league to promote such balance. Such things shall include, but not be limited to, an examination of the way the various clubs share receipts, jointly promote the game, utilize player drafts, and other activities that are deemed necessary to the maintenance of essentially equivalent competition. There should be, in such review, a presumption that activities that promote competitive balance are beneficial to the players. It must be understood that activities which promote competitive balance also provide for the stability of the franchises throughout the country thereby providing for the economic stability that is sought by the enactment of the National Labor Relations Act
 

Other steps could also be taken. For example merely insisting that the union's and management's designated negotiators negotiate all terms and conditions of employment for all members of the bargaining unit would go a long way to eliminating the turmoil. At a minimum, however, those empowered with interpreting the law in sports cases should understand that this is a very different situation and great care should be exercised in making decisions.

1. . In NBA v. Williams, 809 F.2d 954,959 (2d Cir. 1987)Wood's complaint that the NBA-NBPA collective agreement is illegal was denied by Judge Winter.