William & Mary Business Law Review
Abstract
Labor negotiations in professional sports have always been held at the crossroads of labor law and antitrust law. Players are bound by collective bargaining agreements that are governed by labor law but must negotiate these agreements with multi-owner collectives that typically engage in anti-competitive conduct: namely, locking out players during labor disputes. Furthermore, the non-statutory labor exemption has prevented players from using antitrust remedies to combat these employer actions. Players’ unions have fought back against owners in recent years by pursuing the unorthodox counter-strategy of formally decertifying as a union in order to file antitrust litigation. However, the 2011 ruling by the Eighth Circuit in Brady v. National Football League diminished the value of decertification as a negotiating tool and legal strategy. By 2022, decertification, which had been utilized by players’ unions in the last three sports lockouts, was entirely off the table. During the owner-imposed MLB lockout, the MLBPA remained at the bargaining table to negotiate with owners without decertifying to file an antitrust lawsuit, a return to the pre-2011 status quo.
This Note analyzes how the MLBPA’s strategy in the 2022 lockout suggests that sports unions should avoid decertification and strictly pursue labor law remedies during owner-imposed lockouts. Although remedies under the NLRA are more modest than antitrust remedies, they are less risky and more likely to be successful. This Note examines the historical precedent that exempted professional sports from antitrust laws during labor negotiations, assesses the proposed solution of union decertification, and analyzes how Brady v. National Football League created a deterrent to decertification that is too strong for unions to overcome. This Note proposes that the MLBPA’s best course of action to develop leverage over league owners was not to decertify, but to file an unfair labor practice charge with the NLRB for an injunction and monetary remedies. Lastly, this Note concludes that the MLBPA’s negotiation strategy should be viewed as guidance for other sports unions in future lockouts. This Note highlights the impact of Brady v. National Football League on sports unions’ decision to decertify, ensuring that these unions can fight ownership on the right battleground: at the bargaining table, rather than in the courtroom.
Repository Citation
Alec Whipple, How Tom Brady Saved Baseball: A New Understanding of Union Decertification in Professional Sports Lockouts, 16 Wm. & Mary Bus. L. Rev. 403 (2025), https://scholarship.law.wm.edu/wmblr/vol16/iss2/5
Included in
Antitrust and Trade Regulation Commons, Entertainment, Arts, and Sports Law Commons, Labor and Employment Law Commons
