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Hofstra law prof: Owners clearly violating antitrust laws

Hofstra Law School professor Ron Colombo calls the decision to decertify the NFL Players’ Association last week a “very risky” move, but one that could have a big payoff.

“It’s a risky gamble because the court might see this as a sham by the players,” he said on Monday. “Or it could be a stroke of brilliance.”

If the National Labor Relations Board decides to uphold decertification – the owners are making a case that it is a sham – and the players make it to their April 6 date for a preliminary injunction hearing in front of Federal Judge Susan Nelson, Colombo sees little chance that the owners will win.

“Under the ordinary rules of antitrust, to me, the owners are clearly violating the antitrust laws,” he said. “If you remove the fact that the players have a union, if you take that off the table … it looks like the players are correct that the owners are violating the antitrust law. Why? You can’t conspire to fix prices or wages. You have 32 teams. It’s as if Coke and Pepsi agreed to sell all cola at $3 a bottle.”

Most antitrust cases deal with consumers against corporations, not employees like this one.

Colombo said that a ruling in the injunction hearing could tilt the tables in one direction over the other, forcing the sides to reconsider their bargaining positions.

“It’s like a high-stakes game of chicken right now and nobody knows who has the upper hand,” he said. “So when the court comes in and gives one of its first rulings, that gives a perfect example of where things are leaning. Then you realize that maybe their car is bigger than mine, maybe I ought to zig and let them go straight. You learn a lot in these early rulings and it makes you reconsider your negotiating position.

“Right now each side is all worked up, they think they have the best arguments, their lawyers are telling them they have the best arguments,” Colombo added. “You lose an argument or two in the court, it sort of chastens you, and it might put you in a more reasonable position. The downside is does it embolden the winning side to be less flexible.

“We’ll learn a lot after that hearing,” he said.

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