Is a draft without a CBA collusion?

[DBoys]

Given the fact that any of the teams are worthless as a business apart from their existence within the single-entity known as the NFL, those aspects of having a league and making it work for the betterment of all the teams still get to be addressed by the teams/owners working together. Therefore, making rules that keep teams from being able to bankrupt themselves as they compete (ie, taking steps to prevent a 'spend yourself to ruin, or be uncompetitive" quandry) is probably going to be seen as a valid necessity for continued viability of the league and its financial health.

But that's certainly an issue a court would eventually decide. In the meantime, we all can see it however we see it.

[killbuckner]

Dboys... do you think that the league could do away with unrestricted free agency in the name of "competitive balance"?

[DBoys]

Dboys... do you think that the league could do away with unrestricted free agency in the name of "competitive balance"?

No free agency? No, I don't see that as a possibility.

But I do see them being allowed to put that free agency under the confines of a cap that balances the spending between teams, as well as being allowed to place it after a player goes through a player entry draft and gets a specified length rookie contract for an amount that's based strictly on draft position.

But after that, the big issues an individual player can raise will be "working conditions." Otherwise, with no union, the league gains quite a bit of latitude in deciding what it wants to do and how its teams will operate. The league no longer would need to wait on a CBA, they could simply set their rules and go to work. And if they honor all existing contracts (few of which are guaranteed) and then set standardized rules and terms for any and all new contracts to be negotiated, an individual player's only leverage probably comes when he negotiates a contract, and otherwise he plays under the terms determined unilaterally by the league.

[killbuckner]

Dboys- but a draft is eliminating the right to negotiate. IF you are only allowed to negotiate with one team and they have no requirements on what they have to offer you they could decide to offer you a 9 year non-guaranteed contract at a low salary and there is nothing you could do about it. Do you really think the court would try and split hairs and decide that a 3 year rookie contract is reasonable while a 9 year contract is not?

What it comes down to is that you personally think a draft is reasonable so you are reading a couple statements as "almost explicitly allowing a draft'. But when it comes down to it I just don't see how it would possibly be legal to take away the right of negotiation for all rookies when that was not collectively bargained. Why would the court agree to what a "reasonable" deal for a rookie is? If a union agrees that a rookie contract is sufficient then thats a whole separate matter.

Just because something could be claimed to be good for competitive balance does not mean that it would be legal as the NFL found out the hard way when they lost the last time this went to court.

[Curmudgeon]

If SCOTUS thinks that American Needle won't be binding in an anti-trust case involving the NBA, then SCOTUS is wrong.

So, Dboys, you think the draft isn't anti-competitive? Why should players be forced to sign with one team? Why can't they negotiate with every team to get the best offer? That's what prospective employees in every other business do.

Just keep an eye on football, where the union has already decertified. You can be sure the NFL owners will setlle, because if they litigate they will lose, just like they did after the 1987 strike.

[DBoys]

Killbuckner ...I could see a draft allowed with specified entry-level contracts based on draft position, which would guarantee every new player a commensurate salary in relation to every other new player. Yes I think a court would decide a 9-year contract is egregious but a 3-year entry-level contract is not ... figuring out where to draw the line, and what is reasonable vs what is not, is what courts do, and I think they would look at past contracts and rules as some sort of indicator.

"What it comes down to is that you personally think a draft is reasonable so you are reading a couple statements as "almost explicitly allowing a draft'."....Perhaps. But perhaps not. As I read what SCOTUS wrote, it looks to me like a draft is the very type of thing they were intimating as being proper to use, without using that term.

"Just because something could be claimed to be good for competitive balance does not mean that it would be legal as the NFL found out the hard way when they lost the last time this went to court.".....You are wrong on your slant here. The issue adjudicated in American Needle was NOT about what might pertain to "competitive balance" and in fact had nothing to do with that issue. And imo the NFL pushed that case to the SC to see just how much leeway they might have on the single-entity issue, in anticipation of the upcoming labor battle - and they got what they needed imo with the part of the opinion that I quoted. I think it was a classic case of losing the battle in order to win the war.

I do agree that they haven't been given a blank check to slide everything under the umbrella of "competitive balance" ...but I think they have been given an incredible tool to use. What we have to recognize is that within that decision, SCOTUS said the NFL can legally operate its teams as a single business (therefore NOT competing against each other) in certain times and ways. That's huge.

Curmudgeon "If SCOTUS thinks that American Needle won't be binding in an anti-trust case involving the NBA, then SCOTUS is wrong."

Ummm that makes no sense. If SCOTUS wants to apply its single entity thinking to any and every sports league (and presumably they would do exactly that), then they can and will do so. THEY (not you or I) are the ones who decide what is binding and applicable and right.

"So, Dboys, you think the draft isn't anti-competitive? Why should players be forced to sign with one team? Why can't they negotiate with every team to get the best offer? " ....I think the draft is one of the prime tools a league can use to create competitive balance. I think it's easy to accept that the league has a LEGITIMATE business purpose in scattering the talent throughout the league, and if you want to work in their league, you will be required to work within their business model.

[Curmudgeon]

Ummm that makes no sense. If SCOTUS wants to apply its single entity thinking to any and every sports league (and presumably they would do exactly that), then they can and will do so. THEY (not you or I) are the ones who decide what is binding and applicable and right.

Excuse me? SCOTUS is a website sponsored by a law firm. The United States Supreme Court is the highest court in the land, and lower courts are obligated to follow its decisions as binding precedent.

In the American Needle case last year, the United States Supreme Court ruled unanimously that, for anti trust purposes, the NFL consisted of 32 individual teams, not a single entity. It is a cartel.

The argument that the NBA is a single entity has no chance of success in light of American Needle. Zero chance. If a lawyer tries to make the argument, the judge will scowl at him and say, "Didn't you read American Needle? Stop wasting the court's time."

[killbuckner]

Dboys.... you are the only person alive that thinks the NFL got a victory out of the American Needle case. I really don't know how else to explain it other than to say that. They got slapped around and while the court left the door open to ruling differently when it came to competitive matters, really it was just leaving the door open. You are reading WAAAAAY too much into it if you think the court endorsed their position. And you really are reading WAAAAY too much into it if you think that they endorsed the draft in absence of a CBA.

[DBoys]

Curmudgeon, "SCOTUS" is the commonly used acronym for the Supreme Court of the US. I have no idea what a website says nor do I care. My quotes and notes have been from and referring to SCOTUS, not quotes from some website.

Killbuckner and Curmudgeon, you both are certainly free to see AN however you want. But I promise you, there are people more astute than both of us combined who see it as I'm relating it.

In the AN case, the NFL lost the case itself, without question, which was about the very narrow issue of whether the NFL could act as a single entity in its relations with AN. But when SCOTUS said no, they directly and carefully made the decision narrow and precise in its application in one sentence, and in the next opened the door very widely for the validity of the single-entity concept to be applied to certain other areas. This was no accident. Those who rush past that very important point do so to their peril and create their own miscomprehension, as I read it. And it's THEIR intent and thinking that will determine how future courts will act, not ours.

[DBoys]

Let me add a distinction that SCOTUS made but that I have ignored in a desire to make the discussion easier to follow. While we are arguing over whether they allowed the NFL to act as a single entity, they danced away from that terminology issue as irrelevant. They instead said defining the NFL as single entity or not, doesn't really matter, because even if they are a single entity, they can still run afoul of the laws in some areas - and even if they aren't, they can still make decisions as a group in others. It's about the situation itself, and what specific choices are being made, as to whether they are allowable or not. For purposes of understanding in this discussion I have used the shorthand idea of them being a single entity in those allowable areas, but SCOTUS says such labeling is irrelevant.

[Curmudgeon]

It doesn't look like a narrow decision to me. It's a broad decision. And the NFL was posterized.
Folks are free to read it for themselves:

http://www.supremecourt.gov/opinions/09pdf/08-661.pdf

1. The court found, in the case of the NFL, that "The NFL teams do not possess either the unitary decisionmaking quality or the single aggregation of economic power characteristic of independent action. Each of the teams is a substantial, independently owned, and independently
managed business."

2. After shooting down the NFL's arguments one by one, the court went on to hold that the teams were engaged in concerted action under Section 1 of the Sherman Act.

Now the NFL actually has a better argument that it is a single entity than the NBA. There is more economic cooperation in the NFL, which has had revenue sharing since the 1950's. There is no revenue sharing in the NBA. If you think this is just a case about trademark licensing, think again.

[d-train]

Now the NFL actually has a better argument that it is a single entity than the NBA. There is more economic cooperation in the NFL, which has had revenue sharing since the 1950's. There is no revenue sharing in the NBA. If you think this is just a case about trademark licensing, think again.

I doubt the NFL will be allowed to share revenue as freely without a CBA. Sharing revenue is anti-competitive. Surely, the players are going to sue the NFL to stop any type of revenue sharing since revenue sharing reduces the incentive of teams to acquire talent in order to be successful. In fact, the definition of competitive balance to the NFL is to take competition out of their business plan.

[Curmudgeon]

LOL. without a new CBA there won't be any revenues to share. So who cares if it is anti-competitive or not?

Actually it isn't. For starters, the NFL teams shared revenues before there was a players' union, and no one challenged it. But it's a moot point, unless you think the NFL might be profitable with scab replacement players.

[d-train]

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.

No, the players decided the owners don't want to bargain collectively.

The reason a partnership is the best deal for the owners is it would allow the NFL to continue business the way they have done it in the past. And, I think it is also best for the players because the players are the product and in order for the product to be the best it can be, the players should have a stake in the quality of the product. The players can make more money without a CBA but ultimately there needs to be accountability for the product and that requires a partnership. But, it is the owners that have to decide they want the players to have a stake in the success of the business.

[Curmudgeon]

D-Train, are you and Dboys in some sort of alternative universe? I confess that either the two of you are completely detached from reality, or I am.

The owners aren't bargaining collectively. That requires a union. The owners haven't formed a union to my knowledge. Partnership? Are you suggesting that the owners are offering equity to the players? When did that happen?

The players won't make more money without a CBA. Are you kidding?

[d-train]

LOL. without a new CBA there won't be any revenues to share. So who cares if it is anti-competitive or not?

Actually it isn't. For starters, the NFL teams shared revenues before there was a players' union, and no one challenged it. But it's a moot point, unless you think the NFL might be profitable with scab replacement players.

I don't think the NFL has an option to do business while excluding players. The union decertified so if the players under contract show up to play, the owners have to pay the players. And, the law requires the owners to bargain with players not under contract as free agents.

Ultimately, I don’t believe the owners are going to let all their business be decided by the courts.

[d-train]

D-Train, are you and Dboys in some sort of alternative universe? I confess that either the two of you are completely detached from reality, or I am.

The owners aren't bargaining collectively. That requires a union. The owners haven't formed a union to my knowledge. Partnership? Are you suggesting that the owners are offering equity to the players? When did that happen?

The players won't make more money without a CBA. Are you kidding?

No, I'm not saying the owners should literally offer the players equity in their business. I think the owners would be wise to make certain the players have a stake in a successful business.

A CBA does nothing to raise the market value of the games better players. It might help the league’s worst players earn more money than they would with no agreement but by design, it will limit the amount of money that the better players can make.

[DBoys]

Curmudgeon

Your item 1 is true, sorta. But not entirely. That wording was in specific reference to and a subsection of the general topic about "alleged conduct related to licensing of intellectual property." Only. When you apply it to other areas, you're going beyond what SCOTUS was saying.

They went on to say: Football teams that need to cooperate are not trapped by antitrust law. “[T]he special characteristics of this industry may provide a justification” for many kinds of agreements. Brown, 518 U. S., at 252 (STEVENS, J., dissenting).

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. But the conduct at issue in this case is still concerted activity under the Sherman Act that is subject to §1 analysis.

When “restraints on competition are essential if the product is to be available at all,” per se rules of illegality are inapplicable, and instead the restraint must be judged according to the flexible Rule of Reason.

Notice that while SCOTUS said the action before them was NOT single entity in nature, they also note that there are other areas where the NFL would have "perfectly sensible justification for making a host of collective decisions" and where "rules of illegality [would be] inapplicable."

They went on to add:

“Our decision not to apply a per se rule to this case rests in large part on our recognition
that a certain degree of cooperation is necessary if the type of competition that petitioner and its member institutions seek to market is to be preserved."

From that quote, we see that the NFL is clearly permitted to determine what "type" of competition they wish to market. Competition under certain balancing limits (specified draft and cap limits on participants) could certainly be seen under this section, as in others I've noted, as merely a matter of the way they've defined the limits that balance the competition between teams.

Your item 2 actually misstates the SCOTUS conclusion. They did not state that the NFL had "engaged in concerted action under Section 1 of the Sherman Act." Instead, they merely ruled that it was possible for them to have done so in relation to the issue before them (licensing of intellectual property).

we have only a narrow issue to decide: whether the NFL respondents are capable of engaging
in a “contract, combination . . . , or conspiracy” as defined by §1 of the Sherman Act, 15 U. S. C. §1

[DBoys]

Curmudgeon "D-Train, are you and Dboys in some sort of alternative universe? "

I have no idea what you were getting at in that mess about partnership and union and so on. I think you must have taken something out of context from its question or surrounding explanation and misconstrued its intended meaning.

Dtrain "the players decided the owners don't want to bargain collectively"

Nah. The players' only decision was about themselves, and whether they (the players) wanted to bargain collectively. They chose no, but they could have chosen yes if they wished. It's erroneous to blame decisions controlled by me, on the actions of someone else.

As a matter of fact, they made plans to decertify long in advance of the talks, so it's hard to think the owners had much if anything to do with that eventual decision. But regardless, the players always had the choice to bargain collectively, and they (and they alone) chose not to do so.

[d-train]

It's not important whose fault it is that the union decertified. The players have to do the best thing for the players and given the options they had, that is what they did.