Eighth Circuit Heading in the Wrong Direction in Football Dispute

A majority of the three-judge panel hearing the NFL's appeal from the district court's decision enjoining its lockout of its employees seems determined to give the league the victory it seeks. Most of the media has simply played the interim decision as a continuation of the stay of the injunction pending a decision on the merits, but it is more than that. Two of the three judges on the panel bought the NFL's argument that a federal court does not have jurisdiction to issue an injunction in a labor dispute under the provisions of the Norris-LaGuardia Act of 1932.

The twists and turns in this labor dispute have now moved decisively in favor of the league. The problem with the panel's decision is that it ignores the rationale for Norris-LaGuardia and the Supreme Court's decision in Brown, which created this mess in the first place by giving a labor union only one real option when faced with an impasse in negotiations -- declare itself decertified and sue.

Norris-LaGuardia was enacted at the height of the Depression as a pro-labor measure to keep federal courts out of the business of busting non-violent union strikes. For most of the prior century, the courts -- both federal and state -- had acted as tools of management. In the 19th century, they declared unions to be illegal criminal conspiracies and jailed participants in job actions or even in peaceful organizational activities. With the 1914 Clayton Act, peaceful union organizing activity was excluded from antitrust censure. Finally, with Norris-LaGuardia, the courts could no longer be used by companies to break non-violent strikes and organizing.

It was a great irony, then, when the NFL called upon the courts to use this pro-union legislation to free it from judicial restraint and allow it to beat up on the NFLPA (National Football League Players Association) through its powerful lockout. The statute prohibits the issuance of an injunction in any matter "growing out of a labor dispute." Since this matter originated in a labor dispute between the NFL and the NFLPA, then, the majority of the court panel argued, it certainly "grew out of a labor dispute." The NFLPA was certainly a labor union, doing labor union work, primarily its job of negotiating terms and conditions of employment, until the talks broke down. The union then decertified. The panel majority wrote: "Given the close temporal and substantive relationship linking this case with the labor dispute between league and the players' union, we struggle at this juncture to see why this case is not at least one 'growing out of a labor dispute' -- even under the district court's view that union involvement is required for a labor dispute." This reading of Norris-LaGuardia turns the clear congressional intent to protect labor unions on its head.

The majority's reading also ignores the Supreme Court's conclusion in the Brown case. There, Justice Breyer, writing for the Court, concluded that the NFL's antitrust exemption continued long past the expiration of its collective bargaining agreement with the NFLPA, even after the parties had reach an impasse in their negotiations. The NFL could unilaterally institute its final offer to the union -- in that case what the clubs would pay players on what used to be called the "taxi" squads -- without having to worry about the implications of the antitrust laws, which would have made the collusive decision of the owners a clear violation of law. The Supreme Court, however, left open the possibility that the antitrust exemption would expire at some time: "Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process." It then cited cases suggesting that a genuine union decertification would be sufficient to end the antitrust immunity. That, of course, is what the district court found happened here.

Thus, what the majority of the circuit panel has suggested is that the antitrust immunity bestowed by a collective bargaining agreement, albeit one that has expired, can never really end. The differences between the parties will always have grown "out of a labor dispute." The district court's injunction against the lockout will be reversed once the circuit court hears the merits on that issue because of a statute that was designed by Congress to protect unions. Apparently, once a union, always a union.

The irony of this result reminds a labor historian of how the federal courts first used the Sherman Antitrust Act of 1890. Designed to free the economy from the restraints of combining capital, the statute was applied repeatedly against unions! Nothing changes. Everything stays the same.