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Professional football players have disbanded their union in the past to perform an end run around adverse legal rulings, and they are ready to do it again. That was the message to the New York State Bar Association’s annual meeting last week by Richard A. Berthelsen, general counsel to the National Football League Players Association. Berthelsen, of Washington, D.C., was part of a spirited panel discussion sponsored by the bar group’s Antitrust Law Section. The panel explored the present and future of antitrust laws and their applicability to professional sports in light of a ruling by the 2nd U.S. Circuit Court of Appeals in the case of former Ohio State running back Maurice Clarett. Clarett, who led his team to an undefeated season and national championship in his freshman year, wanted to forgo the remainder of his college career and enter the NFL draft. He was blocked by the fact that a contract negotiated between the league and the players’ union — a contract to which he was not a party, negotiated by a union that did not represent him — barred from the draft players who had not been out of high school at least three years. The 2nd Circuit in Clarett v. National Football League, 369 F. 3d 124, reversed a ruling by Southern District Judge Shira Scheindlin and held last year that the labor agreement trumps the Sherman Act. The circuit found that the draft eligibility rule was a mandatory subject of collective bargaining, putting it outside the antitrust laws. That suggested that for the players, it is one or the other — either antitrust protection or collective bargaining protection. But Berthelsen said the two go hand in hand and will continue to complement each other even if the players have to finesse the system to meet their objectives. He disagreed with panel co-chairman Barry J. Brett of Jenkens & Gilchrist Parker Chapin, who suggested that with recent court rulings, such as Clarett, collective bargaining will obviate the use of antitrust laws in professional sports. “The antitrust laws have been a very, very meaningful part of our success as a players’ association,” Berthelsen said. “And notice that I didn’t say ‘union’ because there have been times in our history where we decertified as a union to get what we thought was right for the players � . We basically blew ourselves up.” Berthelsen said that if the courts conclude, as they have on many occasions, that players cannot take advantage of antitrust laws so long as they are represented by a collective bargaining unit, then the players will abandon the union when antitrust law better serves their interests. Robert D. Manfred Jr., executive vice president of Major League Baseball, questioned how long courts will tolerate the now-it’s-a-union, now-it’s-not ploy. “A rule that has developed out of cases like Clarett � represents the only rational balance between the federal labor policy on the one hand and the application of antitrust laws on the other,” Manfred said. He said that professional athletes are different from other employees since their individual bargaining power is significant. Consequently, he said, athletes seek the “best of both worlds,” the benefits of collective bargaining without the drawbacks, and the benefits of union membership without the loss of antitrust rights. Also on the panel were co-chairman Stephen D. Houck of Menaker & Herrmann in Manhattan, Scott R. Rosner of the Wharton School at the University of Pennsylvania and ESPN anchor Jeremy Schaap.

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