Competition on and off the Field: An Analysis of the Role of Antitrust Law in the Continuing Evolution of Professional Sports and Intercollegiate Athletics

When Congress passed the Sherman Act in 1890, professional football did not exist, basketball had not been invented, and the National Collegiate Athletic Association (NCAA) was yet to be born. That all five of the Essays in this Symposium deal in one way or another with the intersection of antitrust law and professional or collegiate sports is a testament to the enduring relevance of the Sherman Act in face of changing market realities. Two of the Essays explore the competing claims of antitrust law and labor law to the relationship between professional athletes and the leagues that employ them. In Brady v. NFL and Anthony v. NBA: The Shifting Dynamics in Labor-Management Relations in Professional Sports, Professor Gabriel Feldman analyzes professional athletes' recent resort to antitrust law to counteract the leagues' use of offensive lockouts to gain salary concessions from players' unions. Feldman traces the development of the nonstatutory labor exemption from the antitrust laws, which the United States Supreme Court created to exempt restraints on competition imposed through the collective bargaining process from antitrust scrutiny and later extended to certain postimpasse conduct. Feldman explains that although the Court said that the antitrust exemption lasts only until the “collapse of the collective-bargaining relationship,” recent cases posed the still unanswered question whether players can avoid the exemption by dissolving their unions and then challenging lockouts under the antitrust laws. Feldman examines the arguments on both sides of the issue and concludes that its resolution will decide the trajectory of labor relations in professional sports. In The Narcotic Effect of Antitrust Law in Professional Sports: How the Sherman Act Subverts Collective Bargaining, Professor Michael H. LeRoy argues that professional football and basketball players have become “addicted” to subverting collective bargaining by seeking court intervention under the antitrust laws in disputes with management. He contends that repeated resort to the antitrust laws provides a “habit forming” release from the obligation of hard and responsible bargaining. In his view, this de facto displacement of collective bargaining undermines the salutary purposes of the National Labor Relations Act, which is to leave management and labor free from government interference as they adjust their differences.