#4: Labor Law and Professional Sports

1. #4: Labor Law and Professional Sports

2. Overview of Labor Law • 1935 Wagner Act grants workers right to organize as unions, and takes labor disputes out of courts, delegated to NLRB • Explicit statutory goals • recognition that free market results in unfair bargaining power for capital over labor (justifying what, economically, is a restraint of trade among workers) • redistribution of wealth from shareholders to workers will have positive macroeconomic effects • prediction that administratively-supervised collective bargaining will reduce strikes and lockouts • Key provisions • Workers (not employers) get to choose whether labor market is organized based on free market, or based on collective bargaining • Majority can grant a union the EXCLUSIVE right to bargain for workers • Unfair labor practices • retaliation against employees for union activity • improper intimidation regarding elections or contract ratification

3. Labor overview /2 • Duty to bargain in good faith • does not include obligation to accept any substantive proposal • does bar specific practices Board determines will harm bargaining (see below) • if parties can’t agree, employers can lock out and workers can strike to achieve goals • Purely administrative enforcement • Later amendments add additional key provisions • Strong preference for disputes about collective bargains to be resolved through arbitration • Union leaders have a “duty of fair representation” to all members

4. Scope of Class Discussion: topics warranting special attention • 1) Exclusive Bargaining Authority • 2) Determining appropriate bargaining unit • 3) Duty of Fair Representation • 4) Good faith bargaining

5. Exclusive Bargaining Authority • “Wagner Act” model provides that a union chosen by a majority of employees in a bargaining unit speaks for ALL members of the unit • even if individual employee can get a better deal • even if individual employee would prefer to work for a worse deal • even if individual is not currently employed

6. ARod contract with Red Sox • CBA provides that a contract whereby a player and club mutually agree to terminate an existing contract cannot provide for a reduced salary, unless the new contract’s terms “actually or potentially provide additional benefits to the player” • Why would union care if Rodriguez and agent Scott Boras think this is a good deal?

7. Bargaining Unit Determination • Does a union representing major league players constitute an appropriate bargaining unit? • Why not include all club employees? • Is a “closers’ union” an appropriate bargaining unit?

8. Duty of Fair Representation • Suppose PA agrees to significant limits on free agency in return for higher minimum salary, improved pensions, and greater injury protection: Does this breach DFR to top players who lose millions that they could achieve with free agency? • Suppose PA demands unlimited free agency after 3 years and agrees in return to very low minimum salaries, minimal pensions, and weak self-insurance for injured players: Does this breach DFR to the majority of players who don’t complete 3 years and will never benefit from free agency?

9. ARod complaint v MLBPA for breach of DFR • Which allegations, if proven, likely state a claim for breach of DFR? ¶5: “MLBPA determined early on that it did not want to "take on" MLB over the alleged use of PES by Mr. Rodriguez and, instead, would "save its fire" for other issues where it would be across the table from MLB” ¶6: “ the Executive Director of MLBP A appeared on a national radio show, declared Mr. Rodriguez's guilt based on his review of the evidence, and stated that he should accept some amount of punishment” ¶26: “refusing to act upon Mr. Rodriguez's requests that MLBPA object to MLB's breaches of the Agreements” ¶26: “refusing to act on Mr. Rodriguez's multiple requests to intervene in and seek dismissal of a sham state court proceeding designed to inappropriately amass evidence against Mr. Rodriguez” (see also ¶56) ¶¶33 et seq.: refusal to inform arbitrator of MLB leaks ¶48: refusal to seek to quash baseless subpoenas ¶70: refused to allow AR to select an arbitrator for 3-member panel ¶73: refusal to seek to overturn arbitral award

10. Bargaining in Good Faith • Key elements • must negotiate in regard to wages, hours, and working conditions (“mandatory subjects of bargaining”) • need not concede or agree: no matter how objectively unreasonable negotiating position might be • must provide “relevant information” • must not change terms after CBA expiration, either to benefit or detriment, without bargaining to impasse

11. Mandatory Subjects of Bargaining • Which of the following constitutes a mandatory subject of bargaining? • enlarging regular season or post-season schedule • changing the DH rule • changing rules for tie-breaking in NHL • safety rules • instant replay • eliminating teams • appointing a new commissioner