My Journal of Sports Economics article "Efficiency and Managerial Performance in FBS College Football" is now available online.
Abstract
This case is important to labor relations because a ruling in favor of the league could not only identify a single entity for NFL apparel contracts, but for all business dealings, including labor issues. As Michael McCann points out in his SI.com column the decision provides NFLPA with relief going forward into labor talks.
Many collective bargaining provisions are, outside of the CBA, violations of antitrust, but off limits to challenges because of the non-statutory labor exemption. Nonetheless the unions’ leverage remains in the antitrust courts, and a decision for the league in this case could seriously tilt the playing field. Simply compare the recently settled MLS CBA to those of the the NFL, NBA, MLB, and NHL. The MLS enjoys legal single entity status, and the MLS players union was able to negotiate little more than reserve era rights and no level of free agency.
Fehr’s quarter century tenure, during which the MLBPA maintained it’s reputation as the most powerful and effective of the professional sports unions, is marked by three milestones. Fehr managed the union’s successful efforts in the court victories over the owners in the collision cases of the late 1980s. He led the resistance to the owners’ brazen attempt at union busting in 1994, calling for the strike that cancelled that year’s World Series, but restored the terms of the collective bargaining agreement sans salary cap. His final decade is marked by the reluctant inclusion of incrementally more rigorous drug testing into the CBA. The first two, especially from the perspective of the players who hired him, will be considered feathers in his cap and bolster his reputation as a highly skilled lawyer and formidable negotiator. Fehr’s handling of the union’s position on performance enhancing drugs is more ambivalent.
Initially Fehr maintained a staunch civil liberties posture toward drug testing—a holdover from the union’s position on recreational drugs. Protection of civil liberties and privacy rights is laudable and has extensive legal justification. However, it provides some cover for the cheaters and criminals at the expense of the other "clean" players. Moreover, because performance, and therefore compensation in baseball is relative, the dimensions of damage to the rank and file are quite different than with recreational drug use. It’s with this balance that Fehr has struggled, and his reluctance to more aggressively address testing and performance enhancing drugs, whether admirable or misguided, will doubtless haunt his legacy.
One early subject of contention: the union's demand the NFL teams open their books and the league's position that the union already has all the relevant financial information.
The battle over financial disclosure in negotiations is not new, and whether the league or union are legally in the right depends on the particular circumstances. However if the NFL maintains that financial concerns are driving their bargaining position, they should be obligated to open their books to the union.
In 1980, the Major League Baseball Player Relations Committee (PRC) proposed replacing the free agency with a more restricted version, akin to the NFL’s Rozelle Rule, whereby clubs losing a free agent could select a player from the roster of the club signing that player. The union, under the leadership of Marvin Miller, strongly objected, contending (correctly) that the market for free agents would be significantly restrained. Prior to the negotiations, Commissioner Kuhn and some individual club owners (Kroc and Turner) made public comments to the effect that escalating salaries, driven by free agency, had caused serious financial problems to the game— to the degree that some clubs were on the verge of bankruptcy. The commissioner’s statements implied that a financial threat to MLB clubs, and therefore players’ livelihoods, was imminent if players did not accept restrictions on free agency. Miller consequently petitioned the NLRB to force MLB to open its books and provide evidence to the union of the claimed financial distress, under the conventions of good faith bargaining. Miller’s position was that the Players Association must have the requested financial data in order to fulfill its duty of fair representation. The Board agreed with Miller, but the PRC appealed in US District Court (Silverman v. MLB PRC, US District Court, Southern District of NY, 1981).
The inference drawn from Silverman is that if the specific financial concerns are part of the NFL’s official bargaining position, the union is justified in asking for financial disclosure. Included in the NFL’s statement in May 2008, as their rationale for opting out of the current CBA two years early was the following: