My Turn | Ending labor law could disrupt pro and NCAA sports

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Sign up for our daily newsletter here Elon Musk (worth $264 billion), owner of SpaceX, and Jeff Bezos (worth $220 billion), owner of Amazon, are fighting union-organizing drives.

Their lawyers are arguing that the National Labor Relations Board is unconstitutional.

Never mind that this issue was decided in NLRB v.

Jones and Laughlin Steel Corp.

in 1937.

Judges appointed by President Donald Trump including Supreme Court justices have already curtailed the NLRBs powers.

And Trump is preparing to spare these poor billionaires from ever bargaining with a union by firing Democratic members of the NLRB in an unprecedented action.

This would probably worry NFL Commissioner Roger Goodell.

In his long tenure, he has negotiated collective bargaining agreements with the NFL Players Association, the union representing pro football players.

No doubt he recalls the failed strike of 1987, where players tried to achieve free agency.

The league hired washed-up players, resumed the season and quickly broke the strike.

The players were so frustrated with the National Labor Relations Act and NLRB that they decertified their union.

Then they sued the NFL under the Sherman Act the same law involved in the NCAAs current $2.8 billion settlement with Grant House and more than 10,000 current and former college athletes.

This may sound confusing.

So, lets go back to 1890.

The Sherman Antitrust Act was passed to protect the little guy from monopolistic practices that squeezed farmers, Main Street merchants and workers.

But as unions gained strength, employers used the Sherman Act to argue that these labor groups violated this antitrust law.

And they had a point strikes often harmed the economy with price-fixing labor agreements.

Eventually, Congress enacted exemptions to antitrust law for unions in 1914 (Clayton Act) and 1932 (Norris-LaGuardia Act).

These laws strengthened collective bargaining by prohibiting judges from getting involved in labor disputes.

Fast-forward to 2011.

After 20 years in a Minneapolis court that expanded free agency for football players, the NFL was released to bargain collectively.

And using the National Labor Relations Act, the NFL played hardball with the union.

It negotiated media deals to pay the league a staggering $4 billion for games lost to a labor dispute.

Yes, the league would profit by causing a lockout.

Tom Brady and the players disbanded their union again.

They thought theyd get a better deal under antitrust law than the National Labor Relations Act.

A federal appeals court ruled that the union engaged in a sham decertification.

This was still a labor dispute, not an antitrust case.

Thus, the union had to negotiate with the NFL.

And the league got its wish adding a game to the season, even though this would shorten player careers due to injuries.

The lesson for the NCAA was clear.

In my 2015 law review article, How a Labor Dispute Would Help the NCAA, I wrote that antitrust has inverted the preferences of a sports league and players union so that now, the league prefers collective bargaining and the union resists it.

I concluded that Northwestern and the NCAA would benefit from recognizing a union: The NCAA would also follow the NFL down the path of preserving its strong bargaining advantage.

And in an antitrust lawsuit to challenge player compensation and mobility restrictions, the NCAA would have a proven defense to avoid antitrust jurisdiction: the same labor-dispute provision under the Norris-LaGuardia Act that defeated the NFL players in 2011.

Nearly 10 years later, the NCAA is $2.8 billion poorer for ignoring this advice.

And they face more antitrust lawsuits from players.

But there is another angle.

The Major League Baseball Players Association pressured MLB to recognize an affiliated union for minor league baseball players.

MLB succumbed to this pressure.

But the union couldnt use collective bargaining to exert this pressure.

Instead, it leveraged a lawsuit under the Fair Labor Standards Act by minor league players that was settled for $185 million the same law in Johnson v.

NCAA by college athletes to pressure MLB to recognize the Minor League Baseball Players Association.

Tony Clark, executive director of the players union, said: You can view this as one tent, if you will, but two separate tables.

And those separate tables are in reference to two separate (collective bargaining agreements), separate governance, while all being under one big tent.

Bear in mind that minor league players have always been employees.

They differ from NCAA players, who cannot be employees under NCAA rules.

Currently, the National Labor Relations Act prevents NFL players from using this strategy to help college players.

Thats because the law excludes most college football players because it only covers private-sector workers.

About 85 percent of college sports power conference schools are public.

Even if the Johnson ruling asserts that athletes are employees for the purposes of the minimum-wage law, they would fall out of coverage under the labor law.

That is, as long as there is a labor law.

Now, take away the National Labor Relations Act.

Whats to prevent the NFL players union from using the baseball players approach to represent college players? Without a labor law, they could bargain over an illegal subject (bargaining for non-employees) in their upcoming talks with the NFL to add another regular-season game.

Or they could try a similar approach in 2030, when they negotiate their next labor agreement leveraging the end of the Big Ten media deal.

Under the current labor law, this pressure tactic is blatantly illegal, even unthinkable.

But without it, pro football players could add college players to their union and hold the NFL hostage until the NCAA voluntarily recognizes players as employees and bargains with them.

Such a dispute could pit the NFL against the NCAA, perhaps with threats to play pro football games every Saturday.

The labor law and labor board substantially reduced strikes and lockouts, confrontational and violent picketing, and nationwide boycotts by unions of big employers.

Take the law and board away, and watch unions eventually revert to more aggressive practices..

This article has been shared from the original article on newsgazette, here is the link to the original article.