Sports' antitrust protections argued at Supreme Court NFL players seek relief for when talks break off


WASHINGTON -- The Supreme Court tackled the issue of antitrust and professional sports for the first time in nearly a quarter century yesterday, questioning whether unionized athletes have the right to go to court instead of on strike to get their way with management.

Professional sports unions are currently forced to disband if they want to file antitrust lawsuits.

But unionized athletes should be covered by antitrust laws if contract talks break down and their leagues act alone in setting player salaries or other working conditions, Kenneth W. Starr, the independent counsel in the Whitewater investigation, argued on behalf of a group of NFL players.

Gregg H. Levy, the NFL's attorney, said the players "want to have it both ways" by taking advantage of labor and antitrust laws. Covered by federal labor law, collective bargaining agreements are exempt from antitrust laws.

The case, filed by Antony Brown of the Buffalo Bills on behalf of 235 developmental squad players, focuses on the $1000-a-week salaries imposed by the NFL on these players after collective bargaining broke down in 1989.

The players won $30.3 million in damages, but the decision was overturned by a lower court.

Legal experts say the final outcome -- which also may affect the entertainment, construction and communications industries -- could change the course of labor strife in professional sports. The work stoppages that have interrupted professional sports more and more frequently may occur less if athletes are allowed to keep playing while they settle their labor disputes in court.

"I think sports fans have a lot riding on this case," University of Illinois law professor Stephen Ross said the day before the hearing.

The decision could affect the NFL, NHL and NBA, but not baseball, which has been exempt from antitrust laws since a 1922 Supreme Court decision. The Supreme Court upheld that decision in the 1972 Curt Flood decision, the last time it addressed the issue of antitrust and professional sports.

Flood's case dealt with baseball's reserve clause, while this one deals with the intersection of antitrust and labor law.

"This is really a tricky case," Justice John Paul Stevens said as justices peppered both sides with questions and comments before an audience that included Washington Redskins general manager Charley Casserly and Miami Dolphins defensive end Trace Armstrong.

Justice Stephen G. Breyer seemed skeptical of Starr's argument that the antitrust laws should be applicable to unions when negotiations with management break off.

"I was brought up at my mother's knee that antitrust and labor laws do not mix," Breyer said.

Several justices expressed confusion over how to determine an impasse, the point where negotiations have broken off and management is able to implement its last offer.

"It seems to me, from your own brief, it's very hard to know what is an impasse," Justice Ruth Bader Ginsburg said to Levy.

"Does the bargaining process ever come to an end?" Stevens asked.

Levy said the bargaining process never really ends, a reason the players should have to make a choice between being unionized or filing antitrust lawsuits.

Justice Sandra Day O'Connor questioned whether that choice "amounts to a penalty."

Levy said the NFL players had other options, such as filing a grievance with the National Labor Relations Board, as the baseball players did during their 1994 strike.

The Supreme Court will make a decision on this case by early summer.

Pub Date: 3/28/96

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