Is a draft without a CBA collusion?

[d-train]

It seems rather obvious that it is. The draft is an agreement between owners to restrict the teams players can bargain with. That seems like the very definition of collusion.

[DBoys]

1 The NBA has a union, and the players have collectively bargained a deal that includes a draft every year as the means of entry into the business. The draft in June would occur while the existing CBA is still going.

2 Even after the CBA expires, as long as the union still exists, I'd wager labor law would allow the league to continue to conduct its regular annual business cycle (such as the draft) as a matter of good faith and common business sense in anticipation that a deal will happen at some point. Since everything is up for grabs with a new CBA, the players could always negotiate to have interim draft(s) voided if that's what they wanted as part of any new CBA.

3 If at some point the union didn't exist, the question to be decided would be whether the NBA is 30 separate entities in the business of basketball, and therefore required to compete with each other and drive each other out of business if they can, or a single entity in the business of entertainment that is competing with baseball, football, hockey, the movies, and so on.

If they are the latter (and there's certainly a good case that can be made for that), the league (like any business) would have the right to assign new hires to their various divisions (aka teams) in any way they see fit, as well as the ability to have a wage scale for new hires. The fact that the union negotiates collectively with the league might point to it being a solitary entity.

[Curmudgeon]

#3 has already been decided in the American Needle case last year, in which the supreme court held 9-0 that NFL franchises are 32 separate entities. The league had tried to argue that it was a single entity.

Of course a draft that has not been sanctionned by collective bargaining violates the anti-trust laws. That's why the NFL players decertified their union and individuals players are now suing the league. I'm a little surprised, in fact, that the players have not attempted to obtain a restraining order preventing April's NFL draft from occurring.

I'm reading elsewhere that the league and the union had a separate agreement on this matter, so that's probably why.

[d-train]

I haven't been following what's going on with the NFL. I didn't know the union decertified. I recently heard the NFL planned a draft without a CBA sanctioning it, which is why I asked the question in the OP.

I'm a little surprised, in fact, that the players have not attempted to obtain a restraining order preventing April's NFL draft from occurring.

I'm reading elsewhere that the league and the union had a separate agreement on this matter, so that's probably why.

It seems like it would be better for the players to wait until after the draft and then ask the courts to void it.

I bet that eventually the courts will freeze the money the NFL receives from its TV contracts. Without a CBA, antitrust laws are going to affect the way NFL teams are allowed to compete (or not compete). And, TV contracts that pay revenues to all teams without teams competing individually for those contracts seems like an anti-trust violation.

[DBoys]

Curmudgeon, from the very words by the SCOTUS, the American Needle case and its decision that they are not a single entity applied to merchandise marketing issues - but maybe nothing more? They left it a bit fuzzy as to where the line is drawn, but the NFL was more-or-less given an explicit endorsement by the SCOTUS as to the validity and allowability of a single entity approach for a player draft as well as for other less defined areas, when it comes to antitrust and anti-competition matters. It was a decision framed in common sense because in some very clear ways those 32 franchises have to be seen as a subset of the league in which they operate.

“The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games, provides a perfectly sensible justification for making a host of collective decisions. Other features of the NFL may also save agreements amongst the teams. We have recognized, for example,’that the interest in maintaining a competitive balance’ among ‘athletic teams is legitimate and important’ . . . . While that same interest applies to the teams in the NFL, it does not justify treating them as a single entity . . . when it comes to the marketing of the teams’ individually owned intellectual property. It is, however, unquestionably an interest that may well justify a variety of collective decisions made by the teams.”

[DBoys]

To address the specifics of your reply ...

#3 has already been decided in the American Needle case last year, in which the supreme court held 9-0 that NFL franchises are 32 separate entities. The league had tried to argue that it was a single entity.

They ruled that the NFL franchises are not "single entity" when it comes to marketing. But maybe that's all they ruled, on that issue.

Of course a draft that has not been sanctionned by collective bargaining violates the anti-trust laws.

Actually the SCOTUS seemed to indicate the opposite. They more or less explicitly endorsed a player draft.

That's why the NFL players decertified their union and individuals players are now suing the league. I'm a little surprised, in fact, that the players have not attempted to obtain a restraining order preventing April's NFL draft from occurring.

I think the union decertified for broader tactical reasons, but (a) it remains to be seen how the courts will see that decertification ...common sense tells us it's a sham rather than a legitimate abandonment of a collective approach to player-owner relations, and (b) while certain players are suing to invalidate a player draft in the wake of that decertification, the existence of a lawsuit doesn't mean they will win, only that they are filing to have the issue adjudicated. They may have no merit whatsoever, should it go to a decision in the wake of what SCOTUS ruled.

[killbuckner]

I think that its illustrative that when Clarett tried to dispute the age limit Sotomayor was on the panel of circuit court judges that ruled on it. The money quote from Sotomayor: "That's what unions do every day -- protect people in the union from those not in the union. Why is this case different?'' That indicates to me pretty heavily that the presence of the union makes many of these rules legal. Just because a league has an interest in promoting competitive balance does not mean that a draft is legal in absence of a union.

If there was going to be a challenge to the draft I'd think it would come from the players to be drafted (and specifically their agents pushing it...)

I'd think the threat of triple damages if the draft were ultimately found to be in violation of anti-trust law in absence of a union would make the owners walk very delicately in this area.

[killbuckner]

They more or less explicitly endorsed a player draft.

I sure didn't get this impression. What parts of the ruling make you think this? When the court ruled unanimously against the NFL in this matter to me thats pretty illustrative. They could lose votes on the borderline cases and still win.

I guess I look at it this way. IN absence of a union a rookie scale contract is totally illegal. Do you agree with that? In absence of a union then a rookie pool that all rookies must be paid out of would seem to be pretty cut and dried illegal. So then I don't see how the courts could allow the draft where a player would only be allowed to negotiate with one team in a "take it or leave it" fashion.

[d-train]

I think the union decertified for broader tactical reasons, but (a) it remains to be seen how the courts will see that decertification ...common sense tells us it's a sham rather than a legitimate abandonment of a collective approach to player-owner relations, and (b) while certain players are suing to invalidate a player draft in the wake of that decertification, the existence of a lawsuit doesn't mean they will win, only that they are filing to have the issue adjudicated. They may have no merit whatsoever, should it go to a decision in the wake of what SCOTUS ruled.

How do you mean union decertification is a sham? Union decertification is the logical progression when collective bargaining fails to yield a benefit to workers. It seems rather obvious in the case of professional sports that anti-trust laws provide more benefits to players than the collective bargaining approach that allows owners to operate outside of anti-trust laws.

[ranger001]

They more or less explicitly endorsed a player draft.

I sure didn't get this impression. What parts of the ruling make you think this? When the court ruled unanimously against the NFL in this matter to me thats pretty illustrative. They could lose votes on the borderline cases and still win.

Doesn't the quote by dboys sort of imply this?

"The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games, provides a perfectly sensible justification for making a host of collective decisions."

They went further to exclude marketing as part of that interest but a draft seems to fit within the language of "collective decisions".

I guess I look at it this way. IN absence of a union a rookie scale contract is totally illegal. Do you agree with that? In absence of a union then a rookie pool that all rookies must be paid out of would seem to be pretty cut and dried illegal. So then I don't see how the courts could allow the draft where a player would only be allowed to negotiate with one team in a "take it or leave it" fashion.

Depends on how the NFL handles it. They could do the draft then not negotiate contracts, saying just that the team has the right to negotiate first say when the labor agreement is done.

[DBoys]

Killbuckner "What parts of the ruling make you think (they more or less explicitly endorsed a player draft)?"

Did you read the quotes I posted above? It should be quite clear. The SCOTUS said: "We have recognized, for example,’that the interest in maintaining a competitive balance’ among ‘athletic teams is legitimate and important’." To me that is an endorsement of a league's right - and perhaps even its obligation to itself in a business sense - to allocate/assign players among its various teams as is needed to maintain competitive balance - which sounds exactly like "player draft", doesn't it?

D-train "How do you mean union decertification is a sham? Union decertification is the logical progression when collective bargaining fails to yield a benefit to workers."

I mean it exactly as it sounds. Decertification is being used as a tactic, but in reality nothing has changed. I know they are not negotiating as individual players but rather as a union, so do you, so does everybody. They are just pretending not to be a union.

Union/employees are not allowed to play the game of "when it's to our advantage, we're part of a union, but when it's not, we aren't." The fact that decertification has been used by NFLPA as a tool before - but then once the players gained what they wanted from not having a union, they promptly put the union back in place - is a legit point the NFL will raise to assert that they are still dealing with a union. I'm guessing a court would see it the same way - given the evidence of what they did previously. Of course, it would be up to a court to make that determination, so who knows?

"It seems rather obvious in the case of professional sports that anti-trust laws provide more benefits to players than the collective bargaining approach that allows owners to operate outside of anti-trust laws."

If that's the case, then why is there a union? The owners didn't force it. Are they prepared to truly commit to taking their chances and going forward long-term as part of a non-union work environment? I don't know how the courts would see it, but if I was the judge, I'd make the players pick one or the other: either you are individuals and it stays that way and you each make your own deal with a team or the league, or you are a union. And if they choose to be individuals, the antitrust laws may not offer nearly as much protection as you think, based on SCOTUS's ruling.

[d-train]

Workers can collectively bargain or not collectively bargain. NFL players have decided to decertify and bargain individually with the benefits of free agency the law guaranties to all of us. It might be a tactic by owners to challenge the decertification because they don't want to negotiate with players individually, but the unions decertification is real. And, the courts are not going to take away the right of workers decertify their union and negotiate individually.

[d-train]

I think the players should not try to stop the owners from having a draft. I like the idea of the owners declaring the value of players. Many players are going to need that as evidence in court.

[DBoys]

Workers can collectively bargain or not collectively bargain. NFL players have decided to decertify and bargain individually with the benefits of free agency the law guaranties to all of us. It might be a tactic by owners to challenge the decertification because they don't want to negotiate with players individually, but the unions decertification is real. And, the courts are not going to take away the right of workers decertify their union and negotiate individually.

Perhaps. If the decertification is indeed what it says it is. But in the past, the players have tried to have it both ways, and my point is that they might not able to have their cake and eat it too this time. If they have to choose, do you believe they really want to work in a "no union" world? I'm not convinced they really want that.

[DBoys]

Keep in mind that while the players would gain "the benefits of free agency" they would no longer have a say in anything the NBA chooses to do as a league, and what rules they choose to implement. SCOTUS has made it clear that the league has the right to do what is necessary to make a competitive league work - and without a union, the players have no way to bargain re those issues. Decertifying, if they are forced to make it stick, is a sword that cuts both ways.

[d-train]

The best deal for owners and players is a partnership. But, if the owners don't offer the players a partnership, the players can make more money without a union.

[killbuckner]

Guys- by your reading then there would be no need to grant the players the right to free agency because the league had an interest in maintaining a competitive balance. I think you guys are reading WAAAAY too much into a couple sentences. The NFL simply cannot do whatever it wants by claiming its a matter of competitive balance.

Other features of the NFL may also save agreementsamongst the teams. We have recognized, for example,“that the interest in maintaining a competitive balance” among “athletic teams is legitimate and important,” NCAA, 468 U. S., at 117. While that same interest appliesto the teams in the NFL, it does not justify treating themas a single entity for §1 purposes when it comes to themarketing of the teams’ individually owned intellectual property. It is, however, unquestionably an interest that may well justify a variety of collective decisions made by the teams. What role it properly plays in applying theRule of Reason to the allegations in this case is a matter to be considered on remand.

To me this is leaving the door open but thats a LONG way off from "more or less explicitly endorsing a player draft". And particularly in absence of a union.

[DBoys]

To have a "partnership" it probably takes a union. The players decided they don't want one. And I'm thinking that the owners might be wishing that the players think like you do ... because whatever the players might gain here or there in an individual contract without a union, they'll be in great danger of losing somewhere else. It's hard to argue that the players in the various leagues did better financially in those pre-union days.

[killbuckner]

The owners are trying to get the players to agree to a CBA that will pretty much stop owners from giving players as much money as they would in a free market. Look at all the things they are fighting over. The salary cap. Rookie Scale Contracts. Franchise Tags. Restricted free agency. All of these things are just to prevent owners from paying as much money as they would like to without the rules being in place. If the owners can find a way to make the league more popular (and make the pie bigger) then they could get the players to agree to all of these restrictions. But otherwise I think at this point the players are far better off decertifying and letting the market set the prices for their services.

I think the salary cap is only legal because it was collectively bargained. The draft is only legal because it was collectively bargained. Franchise tags, restricted free agency, all of these are only legal because they were collectively bargained.

[DBoys]

I think the salary cap is only legal because it was collectively bargained. The draft is only legal because it was collectively bargained. Franchise tags, restricted free agency, all of these are only legal because they were collectively bargained.

Those are valid opinions.

But mine is different. I think the SCOTUS gave the league an incredible amount of leeway in all of those areas because of the issue - explicitly stated by the SCOTUS - that says

....[T]he interest in maintaining a competitive balance” among “athletic teams is legitimate and important"... It is unquestionably an interest that may well justify a variety of collective decisions made by the teams.

There was no qualifier on that statement pertaining to the existence of a union or collective bargaining. So I don't accept the idea that such interests can only be instituted and maintained within the context of the existence of a union.

To my simple-thinking brain, the NFL has been given tons of latitude to work with, as long as the apparent goal is "competitive balance." Accordingly, I believe all the mechanisms that balance the playing field (a cap which forces teams to spend with equal limits on player talent, a draft which allocates talent equally between teams, and so on) would therefore be allowed, union or not. They can't force the NFL to stop operating, so therefore it has the right - and obligation - to keep making necessary decisions for its business, including necessary "competitive balance" decisions. That would include deciding whether to have and how to set a budget (aka hard cap) that keeps the talent and competition more balanced.