= new reply since forum marked as read
Brown v. Pro Football, Inc. 518 U.S. 231, 248, Breyer, J.
Brown concerned the joint imposition of employee conditions by the teams on the players at the behest of the league. The court applied an implicit anti-trust exemption in circumstances where:
As a matter of logic, it would be difficult, if not impossible, to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competition restricting agreements potentially necessary to make the process work or its results mutually acceptable. Thus, the implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions.
In other words, while the teams are individual organizations, the entire league structure of professional sports necessarily admits that certain common employment conditions with competitive organizations serves the mutual benefit of them all. In other words, a certain uniformity of appropriate conditions of employment is necessary for a level playing field in which to conduct league sports.
However, the majority opinion notes:
For these reasons, we hold that the implicit ("nonstatutory"
antitrust exemption applies to the employer conduct at issue here. That conduct took place during and immediately after a collective bargaining negotiation. It grew out of, and was directly related to, the lawful operation of the bargaining process. It involved a matter that the parties were required to negotiate collectively. And it concerned only the parties to the collective bargaining relationship.
Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e.g., 50 F. 3d, at 1057
So, the question here is whether a rule in relation to conduct during the national anthem is properly a "matter that the parties were required to negotiate collectively" - or whether this is a condition of employment which doesn't bear a relationship to the justification for implicit antitrust exemption in this context.
That's just a starting point. I'm sure one would have to examine the details of the contractual mechanism by which such a condition of employment becomes binding on the players.
As a labor law and anti-trust issue, one doesn't have to get into whether the league is some sort of proxy state actor.
