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Like defensive linemen in football, in-house counsel for major league sports are bracing themselves for an onslaught of rancorous collective bargaining issues this spring that could have an impact on the owners, the players, the games and the fans for years to come. Three issues lead the way: The National Football League (NFL) battle to keep collective bargaining agreements exempt from antitrust laws. Major League Baseball’s (MLB) fight to protect the confidentiality of player drug tests. The National Hockey League (NHL) struggle to impose cost limits linked to revenue in its next players’ contract. The NFL’s antitrust fight “is a significant issue for sports law, and for all the leagues,” attorney Jeffrey Kessler said in an interview. Kessler’s clients include players’ associations for the NFL, the National Basketball Association (NBA), MLB, the NHL and Major League Soccer. The case arose when Ohio State’s Maurice Clarett was suspended from playing football in his sophomore year for alleged misconduct off the field. Clarett challenged the NFL rule that allows only players at least three years out of high school to enter the draft. Clarett v. National Football League Inc., No. 03-CV-7441 (S.D.N.Y.). Clarett’s lawyers argued that the NFL rule is not expressly part of the collective bargaining agreement, and “is not the product of bona fide arms-length negotiation, and is, thus, not subject to the nonstatutory labor exemption to the antitrust laws.” On Feb. 5, U.S. District Judge Shira Scheindlin agreed and granted Clarett’s summary judgment motion, making him eligible for this spring’s draft. On Feb. 23, the judge denied the NFL’s request for a stay while it appeals to the 2d U.S. Circuit Court of Appeals. Scheindlin said the NFL ban on younger players violates antitrust law-even if the NFL players’ union had consented to it as part of its collective bargaining agreement. In appealing, the league issued a statement calling the ruling “inconsistent in numerous respects with well-established labor and antitrust law” that usually exempts bargaining agreements. Jeff Pash, the NFL’s executive vice president and chief counsel overseeing the legal department, said the league will probably ask the 2d Circuit for a stay pending the appeal. “We think the ruling is wrong, and it is likely to be reversed on appeal. It is contrary to a lot of law in the 2d Circuit that has addressed the issue quite directly.” Pash said that the league has talked with other leagues about filing amicus briefs and is optimistic that some will do so. He declined to say which leagues. Kessler said the NFL players’ union has not taken a stance, but is considering filing an amicus brief. If it does so, Kessler said, it would support the NFL’s position that established law holds labor agreements exempt from antitrust attacks. The appeal may not be heard before the April 24-25 player draft. Kessler, a partner at Dewey Ballantine in New York, said that even though the other leagues do not have such a rule, they are worried about antitrust implications for their own labor agreements. Professor Matt Mitten agreed, saying “the Clarett case has ramifications for all other leagues” and their bargaining agreements. Mitten is director of the National Sports Law Institute at Marquette University Law School. William Daly, chief legal counsel for the NHL, said his league intends to file an amicus brief in support of the NFL’s position. Joel Litvin, executive vice president for business and legal affairs for the NBA, said his league is also considering an amicus. “We feel quite strongly that the case was wrongly decided,” Litvin said. Collective bargaining is also at issue in MLB’s steroid investigation. The players’ union agreed to the testing program this season as part of its labor negotiations, so long as the results remained confidential. About 5% to 7% of players tested positive, the league said. But a grand jury in San Francisco earlier this month indicted four nonathletes on multiple counts of distributing steroids, and now has subpoenaed the two companies that the league hired to test baseball players for drug use. One of the indicted men was the personal trainer to San Francisco Giants star Barry Bonds, and the trainer has said he distributed steroids to professional baseball players. All four indicted men have pleaded not guilty. Mitten, who has testified before Congress on athlete drug use, said the grand jury wants the test records to discover if any player lied to it about steroid use. If the test results are revealed, then “drug tests will become a very contentious issue in collective bargaining,” he added. Robert Manfred, executive vice president of labor and human resources for Major League Baseball, said in an interview that it feels bound to “defend our labor agreements” and keep the information confidential. He declined to elaborate on exactly how MLB, which, he said, has not been subpoenaed, might intervene in the case. He also declined to discuss how the decision might affect other leagues. But Kessler said the NFL and NBA also have drug-testing clauses in their labor agreements. “If the government is allowed to break confidentiality [in the baseball investigation], then the continuation of tests in all leagues will be greatly diminished,” he said. “They are compromising the entire issue of drug testing.” Beyond drug testing and antitrust issues, the NHL is locked in tense negotiations with its players’ union over what it calls “cost certainty.” The players call it a form of salary cap and steadfastly refuse to consider it. The current agreement expires on Sept. 15. Both the NFL and NBA have salary caps in place, as part of their collective bargaining agreements. MLB does not have a salary cap, but has implemented a “luxury tax” on teams that spend the most on players in an effort to keep salaries down and teams more competitive. On Feb. 12, the NHL released a report prepared by former Securities and Exchange Commission Chairman Arthur Levitt. The report said that the 30 NHL teams lost a composite $273 million on revenues of $1.996 billion during the 2002-03 season, threatening the viability of the league. The players’ association disputes the revenue figures used and blames rising costs on too many expansion teams in cities that don’t financially support them. Players say the marketplace should determine player salaries. Daly of the NHL said in an interview last week that the league has requested the resumption of formal bargaining sessions, and “we remain cautiously optimistic” about a settlement. “The outcome of this negotiation is critical to the future of the league, and the future of the professional hockey industry generally,” he said. “We have an economic system that is not working right now, and we need to fix it.” Kessler said the hockey talks will grow more intense over the summer. “The parties are so opposed at the conceptual level that it looks like they are heading for a lockout in September,” Kessler said. “It is not an issue of how much, but of what the system is going to be.” Move to extend Despite all this legal turmoil, or perhaps because of it, the NFL and the NBA are in early talks to extend their current collective bargaining agreements. Although the NFL’s current agreement does not expire until 2006, Kessler said the players and league hope to agree on an extension by December. Litvin said the NBA’s current contract with players, which he helped negotiate, expires in July 2005. But he added that the league hopes to have a new pact in place by the opening of training camp this coming October. He declined to comment on specific items under discussion.

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