Document Type

Article

Publication Date

4-22-2013

Abstract

In this essay I argue that the Eight Circuit got things very wrong when it found in Brady v National Football League that a district court's injunctions issued against the NFL in connection with playerfiled antitrust suits were barred by the Norris LaGuardia Act of 1932 NLGA I argue that the Court's misreading of the NLGA strikes at the ÔÇ£statutory musicÔÇØ of labor law so dramatically as to represent a judicial unmooring from it I chronicle other recent important but relatively minor judicial departures from the music I also discuss a major but less recent departure ÔÇô the employer lockout I distinguish Brady from these departures concluding that invocation of the NLGA ÔÇô the original and arguably the foundational American labor law statute ÔÇô to protect wealthy NFL owners from playerfiled antitrust suits is a bridge too far That the NFL wants to be exempted from antitrust law I understand We should be honest however and modify antitrust law to affirmatively grant the exemption or not We should not contort and abuse labor law in a manner that makes a mockery of it On the other hand I consider whether cases like Brady are inevitable when judges are propping up a labor law regime originally meant to maintain industrial peace throughout an era in which there is little industrial strife Perhaps it is natural that a labor law regime that cannot do what it was supposed to do because of a shift in the zeitgeist whatever caused the shift coupled with legislative ossification preventing the regime's innovation will be vulnerable to bad faith manipulation In Brady the manipulation consisted of the court's misapplication of the NLGA and its putting on of blinders as all parties advanced positions difficult to characterize as having been made in good faith I question in light of the debacle why anyone would want the labor law we now have

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