CHAPTER 14
LABOR LAW AND SPORTS: A PRIMER
We have decided to provide a primer chapter on labor law as well as contracts and antitrust
because of the crucial role that labor relations has played in sports, particularly professional sports
over the last 25 years. As the introductory material indicates, this primer can in no way can serve as
a substitute for a course in labor law and is only a cursory review of the issues arising under the
National Labor Relations Act ("NLRA"). Although other labor-related legislation is considered in
Chapter 17 and alluded to in Chapters 3 and 20, for the most part this chapter deals with union
employer relations in a private sector setting. As with the chapter on contracts, this chapter could
be simply assigned as an optional read or could be summarized in an entire part of the class in order
to provide the students with a brief overview of the types of labor law issues that will be covered in
Chapters 15 and 16. However, because all students will have had contracts, but not all students will
have had labor law (barring your designation of labor law as a prerequisite), we believe that there is
a greater need to assign all or part of this chapter or at least to give a fairly detailed summary prior
to treating Chapters 15 and 16. If you should desire to emphasize labor law as a predominant part
of your sports law course, then the assignment of Chapter 14 becomes almost imperative.
In assigning a hierarchy of importance to the areas addressed, we would recommend that
greater emphasis be placed on employer unfair labor practices given the fact that the preponderance
of Chapter 15 is devoted to these types of cases. As suggested in the text itself, there have been
very few fully litigated cases involving unfair labor practices committed by players' associations,
therefore those portions of the text dealing with violations of Section 8(a)(1) through 8(a)(5) will be
the most significant. As an overview, I would make every effort to ensure that the students develop
a basic comprehension of the following:
(1) The organizational structure of the National Labor Relations Board ("NLRB") and the manner
in which it adjudicates both representation and unfair labor practice cases. Students should
be made aware of those employees and employers who are covered by the NLRA and what
that basic coverage entails;
(2) The development of collective bargaining as a method of determining wages, hours, and
working conditions;
(3) The representation/organizing process, both in terms of union efforts to unionize employees
and, in limited circumstances, employees' efforts to bargain on their own behalf, together
with the NLRB's role in fostering the process of organizing and the establishment of
collective bargaining prerogatives;
(4) The difference between representation and unfair labor practice cases and how the procedures
vary in each context;
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(5) The proscriptions of the NLRA, particularly Sections 8(a) and 8(b) with, as indicated above,
greater emphasis placed upon employer unfair labor practices;
(6) The types of remedies that will be afforded to the affected parties in litigation before the NLRB;
(7) The nature, legal implications, and professional sports history of strikes and other work
stoppages. Emphasis here should be placed upon the impact of strikes upon an employer
and the employer's prerogative to take various types of defensive action in the event of a
strike. Students should be made aware of the differentiation between an economic and an
unfair labor practice strike, especially the manner in which this distinction affects the right
of the employees to return to their jobs upon the strike's expiration;
(8)
The role that arbitration and other voluntary dispute mechanisms play in modern labor
relations. Students should be apprised that an entire chapter of this text is devoted to
arbitration, and should be provided a brief recapitulation of the arbitration process and the
considerable deference that it is shown by courts and administrative agencies;
(9) The recent developments in collective bargaining. There is no substitute for a full review of the
most recent collective bargaining agreements; however, the text highlights a few of the
more compelling developments, particularly those that may have precipitated a labor strike
or postponed agreement on a collective bargaining agreement. At this point, it is advisable
to explain in some detail issues that may have already been addressed earlier such as salary
caps, free agency, and salary arbitration.
We have found it extremely useful to pinpoint those portions of the outline that will be
given more elaborate treatment in subsequent chapters. For the most part, the text earmarks those
areas; yet, a specific reminder with some preliminary indications as to how the sections of the
primer relate to subsequent chapters would be invaluable in terms of stimulating class discussion
and fostering student understanding when you reach those points in the text. For example, there is a
very brief mention made of the union's right to gain access to relevant information during
bargaining or grievance adjustment in a reference to the Truitt Manufacturing case. A slightly more
extensive discussion of this issue will enhance the students' appreciation of the significance of the
first Silverman case appearing on page 719. Likewise, a brief discussion of discrimination and the
tests employed in the context of a pretextual discharge (e.g., Wright-Line) and strikers' rights to
reinstatement during the strike will, in all likelihood, make the first two cases in Chapter 15 more
rewarding and edifying experiences. As a final example, a discussion of the "exclusivity" principle
and the nature of an employer's bargaining obligation once a union has been certified or recognized
-- together with the limited circumstances in which such exclusivity is "suspended" -- will make the
Midland case and the problem that follows easier to absorb. Certainly, these issues are of special
importance in the sports context given the fact that in most typical industrial settings individual
employees surrender all rights to bargain on their own in favor of the exclusive rights of the
collective. Due to the peculiarities of professional sports and the gross differences in the skills of
professional athletes, suspension of this regime is almost a foregone conclusion. Yet, there has
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never been any definitive resolution as to what the parameters of such limitations of exclusivity are.
This text does not presume to answer them, but certainly will make every effort to identify where
the more difficult issues arise.
The evolution of sports unions is among the more fascinating sports law phenomena. As is
indicated at various points in the text, when professional sports unions originated, no one including
the employees themselves viewed them as typical trade unions. In all likelihood, thoughts of latenight negotiating sessions, strikes, lockouts, and permanent replacement of players never even
entered the contemplation of the athletes or their representatives. On the contrary, the assumption
seemed to be that the parties would almost treat each other as social partners discussing various
issues in a casual, precatory fashion. It soon became apparent to the players that this type of
informal request for a response from sports owners would not be forthcoming. Cynics would
suggest that this lack of response reflects the owners' plantation mentality in which players were
viewed as chattel; their demands were almost considered with some amusement. The various
sports unions in almost simultaneity seemed to recognize the futility of their efforts and escalated
their own militancy. Marvin Miller, Larry Fleisher, Ed Garvey, and others had no intention of
perpetuating the fraternal society approach that had been cultivated by Bob Feller in baseball, Dante
Lavelli in football, and Bob Cousy in basketball during the early days. With the development of
these unions, came an evolution of sports jurisprudence resulting in a few representation and
several unfair labor practice cases that would be typical of a normal industrial setting. It is possible
that labor strikes will enter a dormancy period given the fact that all collective bargaining
agreements in the past few years are not due to expire until the early 21st century. However, while
unfair labor practice and strike activity may be minimized during the next few years, these
entrenched collective bargaining agreements, replete with complex provisions regarding revenue
sharing, salary caps, luxury taxes, etc. may serve as bases for numerous grievances and arbitration
decisions. Conceivably some of these actions could also form the predicate for unfair labor practice
charges before the NLRB as well as possible Title VII claims arising from various types of
discrimination.
In any event, the foregoing should make it very clear that labor law, along with antitrust, is
among the most crucial aspects of sports jurisprudence today. While there are courses that have
been developed along two credit hour lines that do away with either labor or antitrust in the name of
giving comprehensive attention to one of the two, most three credit courses should discuss labor
law in some detail, and even a two credit course should at least allude to it in some fashion.
Hopefully this primer chapter will enhance the students' understanding of the principles and will
make your task in terms of synopsizing the basic rudiments somewhat easier.
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