As our nation celebrates a day dedicated to the social and economic achievements of our labor force, remember that these advancements often stem from disputes. In fact, when considering the biggest sports law issues making news lately, virtually all of them derive from disagreements between employees and employers. A critical question has always been, to what extent should employees have a say in how their workplace operates?
For centuries, employers dictated terms of employment with a blatant disregard for fairness or the law. Here's the job, take it or leave it -- and that was for the employees who weren't indentured servants. And since employers were free to collude, they were able to artificially deflate wages and impose dreadful working conditions, all in the pursuit of maximizing profit. Then over time, employees recognized that by banding together they could use the threat of withholding labor as leverage, thereby extracting concessions in the workplace.
It was not until the industrial revolution in the 18th century when labor unions began to develop. By the 19th century, immigrants from Europe entering the United States brought the concept of unions across the Atlantic with them. Buoyed by developing antitrust and labor laws, unions and collective bargaining matured in the early 20th century, increasing workers' ability to force employers to the table to discuss employment related issues.
Coinciding with the evolution of antitrust and labor laws, professional sports gained popularity here in the United States. A steady and increasing stream of revenue developed from the explosion of radio and then television. The recognition of sports leagues as a business brought a renewed focus on how to grow and divide revenues from the steadily mounting broadcast rights. And this development highlighted new concerns and opportunities for professional athletes who were largely ill prepared to negotiate with the business leaders of their sport. The result of which was the creation of player associations in the four major professional leagues in the 1950s and 1960s. All of which brings us to 2015.
Examine the biggest issues in sports today and what do you find? All manner of disputes between employees and employers. How to expand and distribute revenues? How much compensation do the employees deserve? What role do employees have in defining workplace safety? Who gets final say on employee discipline? What role do the courts have in reviewing collective bargaining agreements (CBAs) between employees and employers?
The lever for many advances in employee rights over the past century has been the concept of collective bargaining. Groups of employees with common interests join together and negotiate as a single unit (i.e., a union) with their employer. Labor law has developed to govern such negotiations, and the end result has defined professional athletics in the 21st century.
At the same time, while the purpose of antitrust law is to maintain free competition in labor markets, the labor exemption has developed to protect negotiated agreements between employees and employers. If reached during collective bargaining, restraints on trade that would otherwise violate antitrust law are protected, thereby allowing labor law to trump antitrust law. As such, concepts that define professional athletics and would otherwise violate antitrust laws, such as player-entry drafts, free agency, trades, salary caps and arbitration are deemed to be legal as they directly derive from negotiations between labor and management.
And if you think reducing the biggest issues in sports today to merely the employee / employer relationship is hyperbole, consider:
- Deflategate: Ignore the rhetoric about PSI and deflated footballs. Quite simply, this boils down to the manner in which an employer may discipline an employee. Does the existing NFL CBA provide the commissioner broad, and largely unfettered, rights to punish a player? Will the appellate court overturn a decision that restricts the commissioner from acting as judge, jury and executioner?
- Paying college athletes: Are students employees, and thereby afforded the opportunity to unionize and bargain collectively? According to the National Labor Relations Board (NLRB), the answer is no. If they are not employees, to what extent can college football and basketball players advocate for compensation and other benefits?
- Concussion litigation in the NFL & NHL: In light of workplace safety and our growing medical understanding of head trauma, to what extent did employees (i.e., players) assume these risks? Should the outcome change if employers intentionally hid facts from their employees?
Why does all of this matter? Because our enjoyment of sports derives from league stability as well as individual player talent. Management (employers) and the players (employees) are both vital cogs in the machinery producing this particular segment of the entertainment industry. Society places athletes who succeed on the field, ice, court, pitch, in high regard long after they have retired.
Especially today, let us remember those who advocated on behalf of their, and other athletes, rights to improve the workplace. People such as Bob Cousy, Steve Prefontaine, Curt Flood, Maurice Clarett, Marvin Miller, Dave McNally, Andy Messersmith, Oscar Robertson, Donald Fehr, John Mackey, Reggie White, Spencer Haywood and Ed O'Bannon, among others may be worthy entrants into the first Sports Law Hall of Fame.