The Appellate Court’s decision yesterday in favor of the NFL owners in their dispute with the players is a rare victory for common sense in the administration of labor law — and a victory for beleaguered employers. It may seem odd to call the NFL owners beleaguered, but given the state of the nation’s labor laws, they have few options in a labor dispute, and, as I explain at Openmarket, taking away the option of a lockout would cripple not just NFL owners, but employers in the garment, transportation, printing and publishing, mining, retail, construction, maritime, retail food, restaurant, hotel, and building service industries, all of which rely on multi-employer agreements with unions, just like the NFL owners.
Indeed, the NFL dispute sheds light not just on the outdated nature of labor laws, but of our antitrust laws too. It is, frankly, absurd to say that sports teams cannot come together to form a league without falling foul of the antitrust laws, and yet that is what our laws say. Richard Epstein has some useful thoughts on that aspect of the dispute. I’ll be developing some more ideas on this subject here and at Openmarket over the next few days.
Finally, it is worth noting that the generally pro-player sports press is starting to express doubts about the validity of the players’ case, particularly when their representative DeMaurice Smith — a former trial lawyer, not a former player like his much-loved predecessor Gene Upshaw — starts making blatantly ridiculous statements about the case. As ProFootballTalk put it:
Eventually, the interview focused on what we believe to be the heart of the current dispute — whether the players will continue to get 50 cents of every dollar that passes through the cash register, even as those dollars exceed $10 billion per year and eventually approach $20 billion per year, and more. Smith speaks as if the continuation of the 50-percent share has become a birthright for the players. At some point, however, it becomes a fair business consideration for the owners to assess whether the players should continue to get half of an exponentially growing pie, especially in light of the players’ viable alternatives.
Tomorrow, I’ll ask the question whether we want the NFL to turn into the English Premier League in soccer — with only four teams in the hunt to win the championship. You might already know the answer . . .