What Brady v. N.F.L. Teaches About the Devolution of Labor Law

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 player-filed 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 “statutory music” 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 – the employer lockout. I distinguish Brady from these departures, concluding that invocation of the NLGA – the original and arguably the foundational American labor law statute – to protect wealthy NFL owners from player-filed 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