Dusting Off the AK-47: An Examination of NFL Players’ Most Powerful Weapon in an Antitrust Lawsuit against the NFL

BY Sean W.L. Alford

Most of today’s football fans take labor peace for granted. After all, it has been more than fifteen years since professional football experienced the labor strife that led to one of the most significant antitrust decisions in favor of its players – McNeil v. National Football League. At the time, the decision was thought to be so player-friendly that one law professor coined it as the player’s “collective bargaining equivalent of an AK-47.” Since McNeil, the players have used the decision as a source of leverage to negotiate collective bargaining agreements that increasingly favor the players. However, the National Football League (“NFL”) owners’ fear of the AK-47 appears to be fading. In May of 2008, the owners elected to exercise their contractual right to opt-out of the final two years of the current collective bargaining agreement with NFL players. As a result, the current agreement expires at the conclusion of the 2010 season. Failure to reach an agreement before the expiration in 2010 will set the stage for a legal Armageddon in which the players may have an opportunity to dust off their AK-47 and test the longevity of its firepower.

This Comment explores the legal battle that might ensue between the NFL and its players if the current agreement expires. Specifically, this Comment frames a hypothetical antitrust lawsuit that the players might file against the League and tests the extent to which the McNeil decision remains a valuable legal weapon for NFL players. Before the players can subject the League to antitrust scrutiny under such a lawsuit, they must overcome the nonstatutory labor exemption to antitrust liability. This Comment shows that the players can overcome this exemption and outlines the steps they must take to do so. Taking into account the legal burden on the players as plaintiffs in the hypothetical lawsuit and the defenses available to the League, this Comment reveals that the NFL’s current labor system — salary cap, free agency system, entering player pool, and college draft — would likely violate antitrust laws under the McNeil framework. Ultimately, the players’ AK-47 still has firepower.

DOWNLOAD PDF | 88 N.C. L. Rev.212 (2009)