The N.B.P.A. Disclaimer: The End of the Bargaining Relationship or a Sham?

Abstract

(10 Willamette Sports L.J., no. 2, 2013, at 56). This article considers how to terminate the judicially-created non-statutory labor exemption to antitrust laws. The article relates the history of the nonstatutory labor exemption for professional sports. The next section discusses terminating the nonstatutory labor exemption to pursue an antitrust lawsuit, in the context of labor disputes. The article focuses on a 2011 contract dispute between the National Basketball Association (NBA) during which the NBA locked out its players. The article argues that the players’ league’s attempt to end the exception by disclaiming its interest in representing NBA players was invalid, and therefore it did not end the collective bargaining relationship nor terminate the nonstatutory labor exemption that protects the NBA from an antitrust lawsuit. Specifically, the disclaimer was not sufficiently distant in time and circumstances from the collective bargaining process. Further, the disclaimer was not made in good faith, and was not unequivocal. The article then briefly analyzes the possibility of forum shopping in labor disputes concerning professional sports and concludes by arguing that the economics of these labor disputes will encourage the continued use of tactics such as bad-faith disclaimers.