While multi-employer negotiations are an effective mechanism for professional teams, it raises questions about the law of the cartel, as the multi-employer unit is essentially an agreement between the owners. Collective agreements in professional sports leagues are therefore not only an agreement between the players and the league, but also an agreement between the teams within the league. For example, free agency restrictions in the NFL are the result of an agreement between players and owners and between the owners themselves (as part of the multi-employer bargaining unit). The work tactics of the multi-employer unit – including lockouts – is also an agreement between the owners. These agreements are in turn subject to review by Section 1 of the Sherman Act. (p. 222) From a league perspective, the immunization of post-dissolution lockouts (and other activities that would otherwise be legal in labour law) of antitrust attacks is the logical extension of the non-legal work exemption and a fair balance between labour and antitrust policy (Feldman, 2012). The leagues assert that, in this context, the dissolution of the union is a „sham” that aims exclusively to give players an influential influence at the bargaining table, and that the union immediately reform (and becomes bound by collective agreements) once they have gained that influence. The leagues argue that the resolution and legal action strategy pushes into the negotiations a „powerful new [work] weapon” that would disrupt the carefully calibrated balance created by the labour process and ultimately destroy the collective bargaining process (Brown, 518 U.S. to 237).
And the removal of the non-legal work exemption at the time of the dissolution of the union would leave the owners in a catch-22: either respond to the demands of the players at the negotiating table, or unilaterally agree on terms of employment (or work tactics) that could be attacked under antitrust rules (237). Quoting Mackey, Nelson J.A. also stated that „federal labour policy only exceeds the contrary policy of antitrust laws if the agreement were to, among other things, deal with mandatory collective bargaining issues” (1041). Given that a lockout is not an object of collective bargaining, but an instrument of procedure (p. 221), Nelson J. found that the application of the non-legal work exemption was inappropriate. Nelson J.A. also found that the lost playing time was sufficient to warrant irreparable harm and found that the injury was highlighted „by the undisputed brevity and uncertainty of players` careers in professional sport, particularly in the NFL” (1035) (internal citation omitted).
The dispute between cartel law and labour law in sports negotiations continued during the NFL and NBA lockouts in 2011, as players and owners continued to seek influence at the bargaining table. Both the NFL and the NBA have made progress in collective bargaining, the owners have blocked the players, and the players have dissolved their unions and called for lockouts on cartels and abuse of dominance. The issues raised by the NBA and NFL disputes were similar, but this section focuses on the NFL negotiations, as the NBA-NBPA fight was resolved before court decisions were made, while the NFL-NFLpa fight sparked several legal opinions and a lengthy discussion on relevant issues (Anthony v. NBA; Brady vs. the National Football League. The history of collective bargaining in professional sport is littered with long labour disputes. In many ways, collective bargaining in professional sport is a reflection of collective bargaining in traditional non-sporting sectors – management and labour use their economic weapons, including strikes and lockouts, to win at the bargaining table. However, professional sports leagues and player associations have unique attributes that involve complex challenges and legal issues in the context of collective bargaining.