The Lesson of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players' Union Disclaimers of Representation

By Siler, Ross | Washington Law Review, March 2013 | Go to article overview
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The Lesson of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players' Union Disclaimers of Representation

Siler, Ross, Washington Law Review


The NFL and NBA lockouts of 2011 challenged the limits of the balance courts have struck between collective bargaining protections and antitrust liability. In each lockout, the respective players' union argued that the bargaining relationship with team owners ended once the union disclaimed interest in continuing as its players' bargaining representative. The players further argued that with the bargaining relationship terminated, the nonstatutory labor exemption no longer shielded owners from antitrust liability for their cooperative agreements and activity. Ultimately, both lockouts settled without courts deciding whether a disclaimer of representation marks what the Supreme Court has described as an "extreme outer boundary" that is "sufficiently distant in time and in circumstances" from the bargaining process such that the nonstatutory labor exemption might no longer protect employers from antitrust liability. This Comment argues that courts should be wary of recognizing disclaimers as terminating the exemption in the wake of the 2011 lockouts. Instead, courts should extend the exemption for a reasonable period following disclaimer. By doing so, courts would reduce the possibility of introducing instability and uncertainty in the bargaining process, which the Court has recognized in the past as a significant concern. Such an extension also would help separate deserving antitrust claims from mere bargaining tactics while allowing the economic pressures facing both sides to shape their ultimate agreement.


For professional football and basketball fans, 2011 will be remembered as the "Year of the Lockout." After collective bargaining agreements (CBAs) in the National Football League (NFL) and National Basketball Association (NBA) expired, team owners in each league locked out their players for months until new CBAs could be reached.1

With hundreds of millions of dollars at stake in these bitter labor battles, players in both leagues followed the same legal game plan - dissolving their unions and accusing the owners of antitrust violations.2 The players' union in each league - the National Football League Players Association (NFLPA) and National Basketball Players Association (NBPA) - disclaimed its interest in continuing to serve as its respective players' bargaining representative.3 Although the disclaimers were not formal decertifications, the players asserted that the disclaimers dissolved their unions in identical fashion.4 Accordingly, the players said, labor law no longer shielded the owners from antitrust litigation.5

Following the disclaimers, players in each league filed class-action antitrust suits, claiming that the owners had engaged in group boycotts and attempted price-fixing in violation of the Sherman Act.6 The players argued that by dissolving their unions, they had abandoned collective bargaining and the owners were now liable under antitrust law.7 The players could have achieved the same result by decertifying their unions, but decertification brings additional logistical and legal consequences.8 By disclaiming, the players dissolved their unions through a less demanding and more immediate process, but one with less certainty in litigation.9 The resulting legal battles in both leagues involved some of the biggest stars in each sport, as well as several of the country's most prominent lawyers.10

The biggest difference between each lockout was the timing of each union's disclaimer. The NFLPA disclaimed representation the day before the CBA was set to expire; its players filed suit concurrently as the football owners imposed a lockout." Ultimately, the Eighth Circuit rejected a U.S. District Court judge's injunction of the lockout.12 However, the Eighth Circuit offered no opinion on the merits of the players' antitrust claims or the effectiveness of the disclaimer of representation.13 The Eighth Circuit held only that the District Court could not enjoin the lockout under the Norris-LaGuardia Act,14 which restricts courts from issuing injunctions in cases involving or growing out of a labor dispute.

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The Lesson of the 2011 NFL and NBA Lockouts: Why Courts Should Not Immediately Recognize Players' Union Disclaimers of Representation


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