Brown v. Pro Football, Inc.

50 F.3d 1041, 311 U.S. App. D.C. 89

Opinions

Opinion for the Court filed by Chief Judge EDWARDS.

Dissenting opinion filed by Circuit Judge WALD.

HARRY T. EDWARDS, Chief Judge:

This case poses a conflict between the policies underlying federal labor law and antitrust law in the context of a labor dispute involving professional football. In the Sherman Act, 15 U.S.C. § 1 (Supp. II 1990), enacted in 1890, Congress proscribed certain practices and agreements inimical to free trade as a means “to promote the national interest in a competitive economy.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 635, 105 S.Ct. 3346, 3358, 87 L.Ed.2d 444 (1985) (internal quotations omitted). There was no unified federal labor policy at the time of the passage of the Sherman Act. However, over fifty years later, when Congress passed the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. (1988), “it set down a federal labor policy ... plainly meant to do more than simply alter the prevailing substantive law. It sought as well to restructure fundamentally the processes for effectuating that policy, deliberately placing the responsibility for applying and developing this comprehensive legal system in the hands of an expert administrative body [the National Labor Relations Board (“NLRB”) ] rather than the federalized judicial system.” Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 288, 91 S.Ct. 1909, 1918, 29 L.Ed.2d 473 (1971). A principal tenet of this federal labor policy is that settlement of collective bargaining disputes should be achieved by “subjecting labor-management controversies to the mediatory influence of negotiation,” not litigation. Fibre-board Paper Prods. Corp. v. NLRB, 379 U.S. 203, 211, 85 S.Ct. 398, 402, 13 L.Ed.2d 233 (1964). In this ease, we must determine whether the nation’s labor laws or antitrust policy control where, after bargaining in good faith to a point of impasse, an employer group takes unilateral action to impose a fixed salary for a category of employees as an otherwise lawful step in the collective bargaining process established by the NLRA.

In 1989, the 28 clubs of the National Football League (“NFL”) were engaged in collective bargaining with the NFL Players Association (“NFLPA”), the players’ collective bargaining representative. During the course of bargaining, the NFL proposed to pay a fixed salary of $1,000 per week to any player assigned to newly formed practice squads. Had the parties been able to reach a settlement on this issue, they could have concluded an agreement establishing $1,000 per week as the salary for practice squad players, and this agreement would have posed no legal problems under the federal labor or antitrust laws. Such was not to be the case, however, for the parties bargained to impasse over the issue, after which the clubs unilaterally imposed the fixed salary for the 1989 NFL season. In response to the clubs’ action, nine players who had been assigned to practice squads filed this class action antitrust lawsuit against the clubs and the NFL in the District Court, alleging that the fixed salary constituted an unreasonable restraint of trade in violation of the Sherman Act. During four years of ensuing litigation, the District Court held that the defendants’ agreement on a fixed salary violated the Sherman Act, and, after a trial to determine damages, entered a judgment against the clubs and the NFL in the amount of $30,349,-642, and enjoined them from ever again setting a uniform salary for any class of players.

While the clubs and the NFL raise a number of challenges to the District Court’s actions, we need not address most of them, for we hold that the District Court erred in rejecting the appellants’ claim that the non-statutory labor exemption shields them from liability in this case. This exemption, a judicially-created doctrine designed to reconcile federal labor and antitrust policies, has had an important place in federal jurisprudence for almost 30 years. Although there has been much debate over the years regarding the scope of the exemption, there is at least one principle that seems clear: restraints on competition lawfully imposed through the collective bargaining process are exempted from antitrust liability so long as such restraints primarily affect only the labor market organized around the collective bargaining relationship. Thus, employees confronted with actions imposed lawfully through the collective bargaining process must respond not with a lawsuit brought under the Sherman Act, but rather with the weapons provided by the federal labor laws.

The NFL was free to take unilateral action after impasse (just as the NFLPA was free to strike), because the action was a legitimate economic weapon available to be used in an attempt to force a settlement. This is exactly what federal labor policy condones, as the Supreme Court has often recognized:

[A] particular activity might be ‘protected’ by federal law not only [where it falls] within § 7 [of the NLRA], but also when it [is] an activity that Congress intended to be ‘unrestricted by any governmental power to regulate’ because it [is] among the permissible ‘economic weapons in reserve ... actual exercise [of which] on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized.’

Lodge 76, Int’l Ass’n of Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 141, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396 (1976) (quoting NLRB v. Insurance Agents’ Int’l Union, 361 U.S. 477, 488, 489, 80 S.Ct. 419, 426, 427, 4 L.Ed.2d 454 (1960)). And, as the Second Circuit has recently held:

[T]he antitrust laws do not prohibit employers from bargaining jointly with a union, from implementing their joint proposals in the absence of a [collective bargaining agreement], or from using economic force to obtain agreement to those proposals. What limits on such conduct that exist are found in the labor laws.

National Basketball Ass’n v. Williams, 45 F.3d 684, 693 (2d Cir.1995). We agree.

Because the NFL in this case acted lawfully within the framework of the collective bargaining process when it unilaterally imposed a fixed salary for practice-squad players, and because this action affected only the market for professional football player services, the nonstatutory labor exemption precludes any finding of liability under the Sherman Act. Accordingly, we reverse the decision of the District Court.

I. BackgRound

This case arises from a labor dispute over salaries for a limited number of professional football players whose jobs required them to practice with regular NFL players, and to replace regular players who became injured, but not otherwise to play in NFL football contests. In 1987, a collective bargaining agreement governing the terms and conditions of employment for all professional football players expired, and the NFL and NFLPA began negotiations for a new agreement. In early 1989, with the two sides making little progress toward such an agreement, the owners adopted an amendment to the NFL Constitution that altered the rules governing players on the clubs’ injured-reserve lists and established new Developmental Squads of practice and replacement players. The amendment, known as Resolution G-2, allowed each club to maintain a Developmental Squad of as many as six rookie or “first-year”¹ practice and replacement players in addition to its usual 47-player roster. Resolution G-2 departed from the customary NFL practice of setting player salaries through individual negotiation. It anticipated a fixed salary for the Developmental Squad players, though it did not establish the amount of that salary.

The NFL and NFLPA engaged in fruitless negotiations over Resolution G-2. On April 7, NFL Management Committee (“NFLMC”) Executive Director Jack Donlan solicited a meeting with NFLPA Executive Director Gene Upshaw to negotiate the terms and conditions of employment for Developmental Squad players. On May 17, 1989, a league management committee proposed that the salary for Developmental Squad players be set at $1,000 per week. On May 18, Donlan again sought a meeting with Upshaw. Subsequently, on May 30, 1989, Upshaw responded with a letter stating that the NFLPA agreed only “that players can be listed on a developmental squad of an NFL club if they have all of the benefits and protections which players on the Active List have,” including “the right to negotiate their own salaries.” Letter from Gene Upshaw to Jack Donlan (May 30, 1989), reprinted in Joint Appendix (“J.A”) 54. Donlan and Up-shaw met on June 16, 1989, to discuss the Developmental Squad portion of Resolution G-2. In a letter to Donlan memorializing the discussions at that meeting, Upshaw rejected the fixed salary component of the Developmental Squad proposal, holding to the position that “all players, including developmental, should have the right to negotiate salary terms, and that no fixed wage for any group of players is acceptable to the NFLPA.” Letter from Gene Upshaw to Jack Donlan (July 6, 1989), reprinted in J.A. 58. As a result, Donlan concluded that the issue was “clearly at impasse” for “implementation purposes.” Letter from Jack Donlan to Hugh Culverhouse et al. (June 16, 1989), reprinted in J.A. 55.

The NFL then unilaterally implemented the Developmental Squad program by distributing uniform contracts for Developmen tal Squad players to all teams. Club officials were advised that paying any such player more or less than $1,000 per week would result in disciplinary action, including loss of future draft choices. See Memorandum from Pete Rozelle, NFL Commissioner, to NFL General Managers, Player Personnel Directors (Aug. 24,1989) at 1, reprinted in J.A. 2538. Resolution G-2 allowed the clubs to form their Developmental Squads from players remaining available after each club reduced its regular roster to 47 players on September 4. Under the resolution, the clubs could sign Developmental Squad players to contracts after 4 p.m. on September 5, 1989. During the 1989 season, 236 players signed Developmental Squad contracts.

On May 9, 1990, appellee Antony Brown and eight other Developmental Squad players² (“the Players”) brought a class action lawsuit against all 28 NFL clubs and the NFL itself on behalf of 235 of the 1989 Developmental Squad players, alleging that the defendants engaged in price-fixing in violation of the Sherman Act by setting a $1,000 fixed salary for such players. On June 4, 1991, the District Court granted the Players’ motion for partial summary judgment, and denied the NFL’s cross-motion, on the issue of whether the Players’ suit was precluded by the nonstatutory labor exemption to the antitrust laws. Brown v. Pro Football, Inc., 782 F.Supp. 125 (D.D.C.1991). The District Court relied on three alternative rationales to support its judgment. First, it held that the exemption ended when the parties’ collective bargaining agreement expired in 1987. Id. at 130-34. Second, the court held that, even if the exemption survived the expiration of the collective bargaining agreement, it ended when the parties reached impasse regarding the issue of Developmental Squad player salaries. Id. at 134-37. Finally, the District Court held that, in any event, the exemption was inapplicable because it protects only restraints on competition contained in collective bargaining agreements, and the fixed salary had not previously been encompassed in any agreement between the NFL and NFLPA. Id. at 137-39.

On March 10, 1992, the District Court granted the Players’ motion for summary judgment on the issue of antitrust liability. Brown v. Pro Football, Inc., 1992-1 Trade Cas. (CCH) ¶ 69,747, 1992 WL 88039 (D.D.C.1992), reprinted in J.A. 422. With liability established, the District Court on September 21, 1992, began a ten-day jury trial on the issues of antitrust injury and damages. The jury awarded damages to the players in the class that, when trebled in accordance with section 4 of the Clayton Act, 15 U.S.C. § 15 (1988), totaled $30,349,642. Brown v. Pro Football, Inc., Civ.Action No. 90-1071 (D.D.C. Oct. 5, 1992) (judgment on the verdict), reprinted in J.A. 2714. In the wake of this verdict, the District Court denied the clubs’ motion for judgment as a matter of law, or a new trial, and granted the Players’ request for a permanent injunction barring the clubs from ever again setting a uniform regular season salary for any category of players. Brown v. Pro Football, Inc., 821 F.Supp. 20 (D.D.C.1993), reprinted in J.A. 2911. Finally, on March 1, 1994, the District Court awarded the Players’ counsel $1,744,-578.41 in attorney’s fees. Brown v. Pro Football, Inc., 846 F.Supp. 108 (D.D.C.1994).³

II. Analysis

On appeal, the clubs and the NFL challenge each of the District Court’s decisions. However, we address only the District Court’s rejection of appellants’ nonstatutory labor exemption defense, because we deem it dispositive. We review de novo the District Court’s entry of summary judgment on this issue. SEC v. Bilzerian, 29 F.3d 689, 695 (D.C.Cir.1994).

Appellants contend that the nonstatutory labor exemption applies to all restraints on competition imposed through the collective bargaining process, even those imposed unilaterally by an employer. In their view, any other rule would disrupt the balance of power between unions and employers that exists under federal labor law. The Players, meanwhile, argue that the exemption applies only where a union has consented to a restraint on competition. They contend that the exemption must be narrowly construed to apply only where unions act in tandem with employers, as, for example, by entering into collective bargaining agreements.

After reviewing relevant Supreme Court precedent and the policies underlying both the NLRA and the Sherman Act, we conclude that the nonstatutory labor exemption shields from antitrust challenge alleged restraints on competition imposed through the collective bargaining process, so long as the challenged actions are lawful under the labor laws and primarily affect only a labor market organized around a collective bargaining relationship. Because the fixed salary for Developmental Squad players is such an action, we hold that the exemption shields the clubs and the NFL from liability in this case.

A Origin of the Exemption

An exemption to the antitrust laws for activities related to collective bargaining traces its origin to sections 6 and 20 of the Clayton Act, 15 U.S.C. § 17 (1988), 29 U.S.C. § 52 (1988), and to the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. (1988). Clayton Act section 6 excludes human labor from the definition of a commodity and provides that the antitrust laws do not prohibit labor organizations. Section 20 of that Act, along with the Norris-LaGuardia Act, limits the authority of federal courts to enjoin specified union activities. While none of these statutory provisions is phrased in terms of an exemption from the Sherman Act, the Supreme Court has interpreted them generally to waive antitrust liability for unilateral union conduct such as boycotts and picketing. See H.A. Artists & Assoc., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 714-15, 101 S.Ct. 2102, 2108-09, 68 L.Ed.2d 558 (1981); United States v. Hutcheson, 312 U.S. 219, 232, 61 S.Ct. 463, 466, 85 L.Ed. 788 (1941). This exemption, known as the statutory labor exemption, does not exempt bilateral activity, such as “concerted action or agreements between unions and nonlabor parties.” Connell Constr. Co., Inc. v. Plumbers & Steamfitters Local No. 100, 421 U.S. 616, 622, 95 S.Ct. 1830, 1835, 44 L.Ed.2d 418 (1975). However, the Supreme Court has recognized

that a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions.

Id. Unlike the statutory exemption, this nonstatutory exemption is available to both unions and employers. See Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 847 n. 14 (3d Cir.1974); see also, e.g., Powell v. NFL, 930 F.2d 1293, 1303 (8th Cir.1989), cert. denied, 498 U.S. 1040, 111 S.Ct. 711, 112 L.Ed.2d 700 (1991).

Although the Supreme Court has recognized a nonstatutory labor exemption to the antitrust laws, the scope of the exemption never has been conclusively delimited. Instead, the Court’s cases in this area mark out only the general boundaries of the doctrine. The Court’s first major decision addressing a restraint on competition imposed through the collective bargaining process came in Allen Bradley Co. v. Local No. 3, Int’l Bhd. of Elec. Workers, 325 U.S. 797, 799-800, 65 S.Ct. 1533, 1535-36, 89 L.Ed. 1939 (1945), in which a local union of electrical workers in New York City reached an agreement with local manufacturers and contractors requiring the contractors to buy equipment only from manufacturers employing union members, and the manufacturers to sell only to contractors employing union members. This arrangement severely curtailed competition from firms outside the city, inflating prices for electrical equipment in the local market. Id. at 800, 65 S.Ct. at 1535. When excluded manufacturers challenged the agreement under the Sherman Act, the union claimed an exemption ft’om antitrust liability. The Supreme Court rejected this claim, concluding that “Congress never intended that unions could, consistently with the Sherman Act, aid non-labor groups to create business monopolies and to control the marketing of goods and services.” Id. at 808, 65 S.Ct. at 1539.

The Court reached a similar conclusion two decades later in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), in which it addressed an antitrust challenge to a contract between a union and large coal mining companies by which the union agreed to impose a new, higher wage upon smaller coal companies as part of a concerted effort to drive the smaller firms from the industry. A majority of the Court rejected the union’s claim to an exemption from the Sherman Act. Id. at 661, 85 S.Ct. at 1588. While Justice White’s opinion for the Court acknowledged that “a union may conclude a wage agreement with [a] multi-employer bargaining unit without violating the antitrust laws and ... may as a matter of its own policy, and not by agreement with all or part of the employers of that unit, seek the same wages from other employers,” it held that “a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units.” Id. at 664-65, 85 S.Ct. at 1590-91.

Pennington’s, promise of a nonstatutory labor exemption to the Sherman Act was realized in a companion case, Local No. 189, Amalgamated Meat Cutters & Butcher Workmen v. Jewel Tea Co., Inc., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965). There, the Court, in opinions by Justices White and Goldberg, applied the exemption to shield from antitrust liability a multi-un-ion, multi-employer agreement to close food store meat departments at 6 p.m. so as to prevent butchers from being replaced by self-service markets or unskilled workers during night hours. Justice White, writing for three justices, balanced the interest of union workers against the impact on the product market, finding the restriction on working hours to be of “immediate and direct” concern to union members and noting that the subject matter of the agreement— employees’ working hours — was “well within the realm of “wages, hours, and other terms and conditions of employment’ about which employers and unions must bargain” under the NLRA. Id. at 691, 85 S.Ct. at 1602. Justice Goldberg, writing for three other justices, went further, concluding that all “eol-leetive bargaining activity concerning mandatory subjects of bargaining under the Labor Act is not subject to the antitrust laws.” Id. at 710.

Finally, in its most recent opinion on the subject, the Court in Connell Construction, 421 U.S. at 616, 95 S.Ct. at 1832, held the nonstatutory exemption inapplicable where a plumbers union forced a general contractor to sign an agreement requiring the contractor to subcontract construction work only to firms maintaining collective bargaining agreements with the union. The Court found that this arrangement “indiscriminately excluded nonunion subcontractors from a portion of the market, even if their competitive advantages were not derived from substandard wages and working conditions but rather from more efficient operating methods.” Id. at 623, 95 S.Ct. at 1835. The Court stated:

This kind of direct restraint on the business market has substantial anticompeti-tive effects, both actual and potential, that would not follow naturally from the elimination of competition over wages and working conditions. It contravenes antitrust policies to a degree not justified by congressional labor policy, and therefore cannot claim a nonstatutory exemption from the antitrust laws.

Id. at 625, 95 S.Ct. at 1836.

In assessing the relevance of these cases to the issue before us, we note initially that the Court never has considered whether the exemption applies where, as here, an antitrust claim arises from a dispute over a negotiable condition of employment between parties to the collective bargaining process. Nevertheless, the Players contend that the Supreme Court’s precedents dictate a rule to govern this case. They seek to extract from the Court’s opinions a rule that the exemption applies only where a union has manifested its consent to a restraint on trade by signing a collective bargaining agreement. They emphasize that both the Connell Construction and Jewel Tea opinions refer to the nonstatutory exemption as a shield from antitrust liability for union-employer “agreements.”⁴ Jewel Tea Co., 381 U.S. at 689, 85 S.Ct. at 1601 (White, J.); Connell Constr. Co., 421 U.S. at 622, 95 S.Ct. at 1835. Absent union consent, the Players contend, the exemption is inapplicable. We disagree. Indeed, we believe that the Players’ view is based on a distorted reading of the ease law.

The language in the opinions upon which the Players rely must be read in context. As the previous discussion indicates, each of the pertinent Supreme Court cases involved an antitrust challenge to a union-employer agreement. In such circumstances, the Court’s reference to the nonstatutory labor exemption in terms of a potential shield from antitrust liability for such agreements is hardly surprising.⁵ Certainly, no Supreme Court case expressly limits the exemption in the manner suggested by the appellees. Thus, nothing in any of the Court’s opinions, from Allen Bradley to Connell Construction, disposes of the issue before us.

While not dispositive, however, the Court’s opinions do provide significant guidance for our reconciliation of the competing antitrust and labor policies in this case. First, in its most extensive discussion of the nonstatutory labor exemption, the Court characterized the doctrine as representing a “proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets.” Connell Constr. Co., 421 U.S. at 622, 95 S.Ct. at 1835 (emphasis added). Thus, the Court recognized that the juxtaposition of policies giving rise to the exemption focuses on collective bargaining as a process, not merely on the product of that process — the collective bargaining agreement.

We also observe that, in applying the non-statutory labor exemption, the Court consistently has struggled to balance the interests of those involved in collective bargaining against the impact of their activities on the product market, paying little attention to any impact on the labor market. See, e.g., Pennington, 381 U.S. at 663, 85 S.Ct. at 1589 (stating that union and mining companies who agreed on price at which companies would sell their coal would be unshielded by exemption because “the restraint on the product market is direct and immediate”); Jewel Tea, 381 U.S. at 690 n. 5, 85 S.Ct. at 1602 n. 5 (stating that “crucial determinant” for application of exemption to an agreement is the agreement’s “relative impact on the product market and the interests of union members”); see also Wood v. National Basketball Ass’n, 809 F.2d 954, 963 (2d Cir.1987) (“Each of the [Supreme Court’s] decisions [applying the nonstatutory labor exemption] involved injuries to employers who asserted that they were being excluded from competition in the product market.” (emphasis omitted)). Nothing in the Court’s opinions supports appellees’ attempt to import antitrust principles into a labor market organized around a collective bargaining relationship. “Quite the contrary, the issue has been whether even to go so far as to impose antitrust sanctions for the kind of product market activities involved in Pennington.” Michael S. Jacobs & Ralph K. Winter, Jr., Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L.J. 1, 27 (1971). In short, we agree with those commentators who have observed that

[f]rom Allen Bradley to Pennington, the majority of the Court has insisted that one factor be present before the Sherman Act applies to arrangements arrived at through collective bargaining: one group of employers must conspire to use the union to hurt their competitors. The line the Court has consistently sought to draw, therefore, is the line between the product market and the labor market.

Id. at 26.

Thus, from the Court’s opinions we derive two principles to guide our application of the nonstatutory labor exemption. First, the exemption must be broad enough in scope to shield the entire collective bargaining process established by federal law. Second, the case for applying the exemption is strongest where a restraint on competition operates primarily in the labor market and has no anti-competitive effect on the product market. We believe these principles find support not only in the Supreme Court’s precedents, but also in the policies underlying both the NLRA and the Sherman Act.

B. The NLRA

The NLRA makes clear that federal labor policy focuses on collective bargaining as a process, rather than collective bargaining agreements alone. In the NLRA, Congress established “the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). This obligation “is premised on the belief that collective discussions backed by the parties’ economic weapons will result in decisions that are better for both management and labor and for society as a whole.” First Nat’l Maintenance Corp. v. NLRB, 452 U.S. 666, 678, 101 S.Ct. 2578, 2580, 69 L.Ed.2d 318 (1981). Thus, two factors define the collective bargaining process under federal law: the “necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one’s terms.” Insurance Agents’ Int’l Union, 361 U.S. at 489, 80 S.Ct. at 427.

As the foregoing suggests, collective bargaining under the NLRA is a carefully defined bilateral process. Unions and employers alike enjoy protections under the collective bargaining process. Unions are not the sole beneficiaries of the NLRA. For example, unions may strike, see NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 1102, 8 L.Ed.2d 298 (1962); see also 29 U.S.C. § 163, but employers may lock out their workers, see American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 310-11, 85 S.Ct. 955, 963-64, 13 L.Ed.2d 855 (1965). Further, unions are protected against unilateral action by employers with respect to subjects of mandatory bargaining while negotiations over such subjects are ongoing, see NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962), and continue to enjoy this protection until negotiations end in impasse, see Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d 1111, 1113 (D.C.Cir.1986). At that point, however, “an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals.” NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153, 1165 (D.C.Cir.1992) (Edwards, J., concurring in denial of petition for enforcement) (emphasis omitted) (quoting American Fed’n of Television & Radio Artists v. NLRB, 395 F.2d 622, 624 (D.C.Cir.1968)). Employers may not fire workers engaged in economic strikes, and must rehire such workers at the conclusion of such a strike absent “legitimate and substantial business justifications” for doing otherwise. NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378, 88 S.Ct. 543, 545, 19 L.Ed.2d 614 (1967) (quoting NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967)). Under an exception to this rule, however, employers may hire permanent replacements for strikers. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938). Finally, while the NLRA requires both employers and unions to bargain collectively, it does not require either side to agree. See 29 U.S.C. § 158(d) (providing that duty to bargain “does not compel either party to agree to a proposal or require the making of a concession”). Rather, the statute generally leaves the outcome of negotiations to the parties, with government intervention largely proscribed. See Insurance Agents’ Int’l Union, 361 U.S. at 488, 80 S.Ct. at 426 (“Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences.”); H.K. Porter Co. v. NLRB, 397 U.S. 99, 108, 90 S.Ct. 821, 826, 25 L.Ed.2d 146 (1970) (stating that NLRB’s role under the Act is “to oversee and referee the process of collective bargaining, leaving the results of the contest to the bargaining strengths of the parties”).

Thus, a careful reading of the federal labor laws militates strongly against the Players’ argument that the nonstatutory labor exemption shields restraints on competition only when unions have consented to them by signing collective bargaining agreements, for that argument necessarily incorporates the premise that federal labor policy somehow favors unions in the collective bargaining process. As the terms of the NLRA amply demonstrate, federal labor policy favors neither party to the collective bargaining process, but instead stocks the arsenals of both unions and employers with economic weapons of roughly equal power and leaves each side to its own devices.

Some commentators have suggested that union agreement ought to be a precondition to any invocation of the nonstatutory labor exemption, because, in their view, the federal labor laws are primarily designed to foster employee rights to engage in collective bargaining. At one level, this argument is a nonsequitur, for the right to engage in collective bargaining does not encompass the right of agreement. At another level, the argument expresses more an aspiration than a reality. It is true that the NLRA strongly protects the right to join and form unions, but at least since Congress passed the Labor Management Relations Act of 1947, 29 U.S.C. § 141 et seq. (1988) (“LMRA”), federal labor law has expressed a “policy of voluntary unionism.” Pattern Makers’ League v. NLRB, 473 U.S. 95, 105, 105 S.Ct. 3064, 3070, 87 L.Ed.2d 68 (1985). The LMRA expressly gave employees the right to refrain from collective bargaining activity, see 29 U.S.C. § 157, and, while it maintained the obligation of employees to pay union dues under union security agreements, it established that an employer would commit an unfair labor practice by discharging an employee “for failing to abide by union rules or policies with which he disagrees.” Pattern Makers’ League, 473 U.S. at 106, 105 S.Ct. at 3071; see 29 U.S.C. § 158(a)(3). Thus, under the NLRA, employees have an equal right to join or refrain from joining unions and engaging in collective bargaining.

Accordingly, to accommodate federal labor policy, we must preserve the delicate balance of countervailing power that characterizes the process. Injecting the Sherman Act into the collective bargaining process would disrupt this balance by giving unions a powerful new weapon, one not contemplated by the federal labor laws. With such a weapon at their disposal, union workers could do what the plaintiff class has done here: invoke the antitrust laws and their threat of treble damages to gain an advantage in bargaining over a salary provision about which union members do not care deeply enough to strike. In sum, a proper respect for the national labor policy expressed in the NLRA and the LMRA requires us to recognize the nonstatutory labor exemption as a potential shield for all lawful actions taken by either unions or employers pursuant to the collective bargaining process. Indeed, only the most crude accommodation of the federal labor and antitrust policies would shield union-employer agreements from Sherman Act liability, but leave exposed the lawful means employed in the process to reach those agreements.

In this regard, we find it telling that those judges and commentators who favor leaving certain aspects of the collective bargaining process unshielded by the exemption cannot agree on any point at which the exemption must expire in order to properly accommodate federal labor policy. See, e.g., Powell v. NFL, 678 F.Supp. 777, 788 (D.Minn.1988) (“[P]roper accommodation of labor and antitrust interests requires that a labor exemption relating to a mandatory bargaining subject survive expiration of the collective bargaining agreement until the parties reach impasse as to that issue.”), rev’d, 930 F.2d 1293 (8th Cir.1989); Bridgeman v. National Basketball Ass’n, 675 F.Supp. 960, 967 (D.N.J.1987) (holding that nonstatutory labor exemption for restraint on competition contained in expired collective bargaining agreement survives impasse in negotiations over new agreement “only as long as the employer continues to impose that restriction unchanged, and reasonably believes that the practice or a close variant of it will be incorporated in the next collective bargaining agreement”); Kieran M. Corcoran, When Does The Buzzer Sound?: The Nonstatutory Labor Exemption In Professional Sports, 94 Colum.L.Rev. 1045, 1072 (1994) (suggesting that “the exemption should extend until it becomes clearly unreasonable for both of the parties to believe the particular provision will continue to exist in that form in a succeeding agreement”); Ethan Lock, The Scope Of The Labor Exemption In Professional Sports, 1989 Duke L.J. 839, 400 (1989) (“[T]he proper accommodation of federal antitrust and labor law requires that the labor exemption expire simultaneously with the collective bargaining agreement.”). The one common thread in this dizzying array of options is that not one of the proposals makes the slightest sense under established labor law principles.⁶

We also find it telling that the more recent decisions construing the nonstatutory labor exemption establish a clear trend in favor of shielding the collective bargaining process in its entirety. Most notably, in Powell v. NFL, 930 F.2d at 1293, the Eighth Circuit applied the nonstatutory labor exemption to bar an antitrust attack on free agency restrictions contained in an expired collective bargaining agreement even after negotiations on a new agreement ended in impasse. The Powell court concluded, as we do here, that

[t]he labor arena is one with well established rules which are intended to foster negotiated settlements rather than intervention by the courts. The League and the Players have accepted this “level playing field” as the basis for their often tempestuous relationship, and we believe that there is substantial justification for requiring the parties to continue to fight on it, so that bargaining and the exertion of economic force may be used to bring about legitimate compromise.

Id. at 1303; see also, e.g., Williams, 45 F.3d at 688 (holding that antitrust laws do not prohibit employers from bargaining jointly with a union and implementing their joint proposals in the absence of a collective bargaining agreement); Wood, 809 F.2d at 959 (“[N]o one seriously contends that the antitrust laws may be used to subvert fundamental principles of our federal labor policy as set out in the [NLRA].”).

Finally, we observe that the Players have offered no coherent theoretical framework in support of their view that the exemption expires with the collective bargaining agreement. Under their view, a multi-employer bargaining unit could be held liable under the antitrust laws for adhering to the terms of an alleged restraint on competition embodied in an expired collective bargaining agreement prior to impasse, despite the fact that employers face an unfair labor practice charge if they alter the terms of agreement during that period.⁷ See Southwestern Steel & Supply, Inc., 806 F.2d at 1113. At the same time, however, the Players submit that such employers could not similarly be held hable for locking out employees to gain an advantage in negotiations. See Tr. of Oral Argument at 42. We find this reasoning incomprehensible. Both an employer’s adherence to expired terms prior to impasse and its decision to lock out employees are unilateral but lawful aspects of the collective bargaining process established by the NLRA — as, for that matter, is an employer’s unilateral implementation after impasse of a term encompassed within its pre-impasse proposals.

In an effort to find a theoretical framework to support the Players’ position, the dissent relies heavily on a purported distinction between the unilateral implementation of employment terms after impasse and other bargaining “tactics” utilized by both employers and employees in the collective bargaining process. Not only is such a distinction completely without support in the ease law, but, as even the dissent itself acknowledges, such a view is patently contrary to Supreme Court precedent. On this point, the Court in American Ship Building Co., 380 U.S. at 316, 85 S.Ct. at 966, made it clear that an employer’s right to “institute unilaterally the working conditions which he desires” is among the lawful “tools of economic self-help” available to be utilized as a tactic in collective bargaining. It is beyond the authority of this court to find otherwise.

C. The Sherman Act

As the policy underlying the NLRA supports the principle that the nonstatutory labor exemption shields the entire collective bargaining process, so too the policy underlying the Sherman Act supports the principle that the case for applying the exemption is strongest where a restraint on competition operates primarily in the labor market. The Sherman Act states simply that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. While the statutory language speaks broadly of every restraint of trade, the Supreme Court has long since limited its application to only those restraints deemed unreasonable. See Standard Oil Co. v. United States, 221 U.S. 1, 62, 31 S.Ct. 502, 516, 55 L.Ed. 619 (1911) (stating that “the criteria to be resorted to in any given [Sherman Act] case for the purpose of ascertaining whether violations of the section have been committed, is the rule of reason”). In an effort to give content to this reasonableness standard, courts have conceived of the Sherman Act as a “consumer welfare prescription.” Reiter v. Sonotone Corp., 442 U.S. 330, 343, 99 S.Ct. 2326, 2333, 60 L.Ed.2d 931 (1979) (internal quotations omitted). Thus, the Sherman Act’s primary focus is the product market, not the labor market. As one preeminent commentator has stated, “the antitrust laws are not concerned with competition among laborers or with bargains over the price or supply of labor — its compensation or hours of service or the selection and tenure of employees.” Archibald Cox, Labor and the Antitrust Laws—A Preliminary Analysis, 104 U.Pa.L.Rev. 252, 255 (1955). Indeed, in considering the standing of labor unions to bring antitrust claims, the Supreme Court has stated that “a union, in its capacity as bargaining representative, will frequently not be part of the class the Sherman Act was designed to protect, especially in disputes with employers with whom it bargains.” Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 540, 103 S.Ct. 897, 909, 74 L.Ed.2d 723 (1983) (emphasis added).

We recognize, of course, that, as a general matter, the antitrust laws may apply to restraints on competition in non-unionized labor markets. See, e.g., Radovich v. NFL, 352 U.S. 445, 449-52, 77 S.Ct. 390, 392-94, 1 L.Ed.2d 456 (1957). However, we think the inception of a collective bargaining relationship between employees and employers irrevocably alters the governing legal regime. Once employees organize a union, federal labor law necessarily limits the rights of individual employees to enter into negotiations with their employer. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123 (1967); see also 29 U.S.C. § 159(a) (providing that representatives selected to bargain for employees in a collective bargaining unit “shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining”). Indeed, employers are positively prohibited from seeking to bargain with individual employees, absent consent from the union. See J.I. Case Co. v. NLRB, 321 U.S. 332, 338-39, 64 S.Ct. 576, , 88 L.Ed. 762 (1944). Moreover, employers may lawfully reduce competition in the labor market by forming multi-employer bargaining units, allowing for standardization of wage rates and working conditions within an industry. See generally NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 94-96, 77 S.Ct. 643, 646-48, 1 L.Ed.2d 676 (1957). Thus, once collective bargaining begins, the Sherman Act paradigm of a perfectly competitive market necessarily is replaced by the NLRA paradigm of organized negotiation — a paradigm that itself contemplates collusive activity on the parts of both employees and employers. Stubborn adherence to antitrust principles in such a market can only result in “a wholesale subversion” of federal labor policy. Wood, 809 F.2d at 959.

When this case is put in proper perspective, it is very difficult to take seriously the Players’ claim that the action of the NFL violated the Sherman Act. If the Players had been negotiating with a single football team (instead of the multi-employer group), there is no doubt whatsoever that that single employer lawfully could have taken unilateral action to impose a fixed salary for practice team players after bargaining in good faith to a point of impasse. Indeed, the players do not assert otherwise, for they recognize that this is standard fare in labor law. And nothing in the antitrust law is intended to proscribe such unilateral action by a single employer. So the heart of the Players’ position appears to be that the presence of a multi-employer bargaining unit should make a difference under the antitrust law. This is a wholly untenable position, we think, for the reasons given in a compelling decision recently issued by the Second Circuit:

The existence of employer organizations that bargained with unions of employees pre-dated the passage of the Sherman Act in 1890.... Indeed, at that time these organizations existed at the national as well as local level.... Nevertheless, we find during the 104 succeeding years not a single instance, prior to this very case, of a union or an individual employee asserting the stark claim that the routine practices of multiemployer bargaining violate the antitrust laws. It is true that recent antitrust challenges in the professional sports industry have at times involved facts very similar to those in the instant matter, see Powell, 930 F.2d at 1293; Brown v. Pro Football, Inc., 782 F.Supp. 125 (D.D.C.1991); Bridgeman v. National Basketball Ass’n, 675 F.Supp. 960 (D.N.J.1987), but the multiemployer bargaining issue appears to have been raised obliquely, if at all.

To the extent Congress has focused on the legality of multiemployer collective bargaining, it has always indicated its approval, or at least an assumption of legality. In 1920, Congress sought in the Clayton Act to prevent federal courts from interfering in labor disputes. Although Congress was largely concerned with the effect of such interference on unions, the statute was phrased in an evenhanded fashion to protect employer conduct in labor disputes as well as that of unions. Section 20 thus exempted from federal prohibition “persons ... terminating any relation of employment ... or withholding ... moneys or things of value,” language that would permit multiemployer lockouts. 29 U.S.C. § 52. In 1932, Congress passed the Norris-LaGuardia Act, which barred federal courts from issuing injunctions against firms seeking to join, or remain members of, employer organizations, 29 U.S.C. § 104(b), and used language similar to that of the Clayton Act quoted supra, 29 U.S.C. § 104(c). The definition of persons involved in a labor dispute also recognizes the existence of employer organizations. See 29 U.S.C. § 113(b). See also California State Council of Carpenters v. Associated Gen. Contractors, 107 L.R.R.M. 2724, 2725 (9th Cir.1981) (“[E]ven if the antitrust laws had been interpreted so as to bring multiemployer bargaining units within the scope of the Sherman Act, the statutory exemption found in section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, when read together with section 20 of the Clayton Act, 29 U.S.C. § 52, clearly exempts ‘[bjecoming or remaining a member ... of any employer organization’ from the antitrust laws. 29 U.S.C. § 104(b).” (footnote omitted)). In 1947, Congress refused to limit multiemployer bargaining because it concluded that such bargaining “was a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining.” [NLRB v. Truck Drivers Local Union No. 449 (“Buffalo Linen”), 353 U.S. 87, 95, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957) ] (discussing congressional debate over the Taft-Hartley amendments of 1947).

The lack of any antitrust challenge to, or congressional action restricting, multiem-ployer bargaining, for a century during which it prominently existed, grew, and flourished, strongly suggests some kind of general understanding about the legality of multiemployer bargaining that is fundamentally inconsistent with [the Players’] claim.

* * * * * *

We believe that the history recounted here strongly suggests that Congress never intended that the antitrust laws prohibit multiemployer bargaining with a common union. Congress seemed to assume, and then to act on that assumption in 1947, see Buffalo Linen, 353 U.S. at 95-96, 77 S.Ct. at 647-48, that multiemployer bargaining was both efficient and a necessary counterweight to union power. Such a belief arguably fits within Rule of Reason analysis that permits “ancillary restraints” necessary to a legitimate transaction. See United States v. Addyston Pipe & Steel Co., 85 F. 271, 282 (6th Cir.1898), modified, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). Whether as a court we would reach that result if writing on a clean slate is not the issue, however, because whatever doubt might have existed as to Congress’ intent was entirely eliminated by the passage of federal labor laws.

#

[MJultiemployer bargaining has been a conspicuous feature of collective bargaining since the very formation of unions. To hold at this late date that it — or the essence of practice under it — is illegal under the antitrust laws would cause a massive reshaping of the institution of collective bargaining.... The only basis for the claim asserted by [the Players] is that multiemployer bargaining is illegal.

^

Buffalo Linen simply cannot be reconciled with [the Players’] antitrust claim. The facts in that case plainly involved conduct that, if antitrust principles apply, were price-fixing and a joint boycott, per se violations of the Sherman Act. However, the decision not only permitted the conduct but also stated that Congress had expressly considered multiemployer bargaining and had resolved to allow it subject only to the limitations of labor law as interpreted by the Labor Board.

Williams, 45 F.3d at 692.

We therefore conclude that when federal labor policy collides with federal antitrust policy in a labor market organized around a collective bargaining relationship, antitrust policy must give way. No one disputes that this conclusion is correct where a restraint on trade is embodied within a valid collective bargaining agreement. However, we see no need for a different rule in cases in which a multi-employer bargaining unit lawfully implements a term rejected by the union after bargaining breaks down. In such a case, “the gist of the antitrust theory is little more than that hard bargaining by employers with unions violates the Sherman Act.” Jacobs & Winter, supra, at 27.

D. Application of the Exemption

Based on our review of relevant Supreme Court precedent and the policies underlying both the NLRA and the Sherman Act, we conclude that injecting antitrust liability into the system for resolving disputes between unions and employers would both subvert national labor policy and exaggerate federal antitrust concerns. Accordingly, we hold that the nonstatutory labor exemption waives antitrust liability for restraints on competition imposed through the collective bargaining process, so long as such restraints operate primarily in a labor market characterized by collective bargaining. Our conclusion dictates that the exemption bars the plaintiff class in this case from challenging the fixed salary for Developmental Squad players under the antitrust laws. The clubs and the NFL imposed the fixed salary only after negotiations over the issue reached impasse, and the fixed salary was encompassed within their pre-impasse proposals. Thus, their action was a lawful part of the collective bargaining process established by the NLRA. Further, the fixed salary operates as a restraint on competition in the labor market, specifically, the market for Developmental Squad player services, which is organized around the collective bargaining relationship between the NFL and the NFLPA. Indeed, counsel for the plaintiff class at oral argument acknowledged that the fixed salary for Developmental Squad players had no effect on the product market.⁸

In our view, the nonstatutory labor exemption requires employees involved in a labor dispute to choose whether to invoke the protections of the NLRA or the Sherman Act. If employees wish to seek the protections of the Sherman Act, they may forego unionization or even decertify their unions. We note that the NFL players took exactly this latter step after the Eighth Circuit’s Powell decision. See Releasing Superstars, supra, at 883 (describing NFLPA decertification after Powell). Decertification also occurs when newly organized unions are unable to negotiate their first contract. We do not mean to encourage this practice, but we believe that employees, like all other economic actors, must make choices. If they choose to avail themselves of the advantages of the collective bargaining process, their protections are as defined by the federal labor laws. The system established by those statutes offers employees many benefits: recognition of organized workers as a bargaining unit, thereby giving them bargaining strength; establishment of mandatory subjects of bargaining; protection of the right to strike; allowance for the possibility of negotiated grievance procedures and pooled benefit plans; and judicial enforcement of collective bargaining agreements. Further, it establishes a significant list of employer actions that, if taken, constitute unfair labor practices for which employees and unions may seek redress before the NLRB. However, under the system established by the federal labor laws, employees win concessions not by filing antitrust lawsuits, but with shrewd bargaining, favorable grievance settlements, victories in arbitration, and, when necessary, by striking.

We recognize that the history of bargaining between the NFL and the NFLPA, which includes a failed strike by the players during the 1987 season, has prompted some commentators to conclude that “[t]he union cannot effectively strike.” Ed Garvey, Foreword To The Scope Of The Labor Exemption In Professional Sports: A Perspective On Collective Bargaining In The NFL, 1989 Duke L.J. 328, 337 (1989); see also Lock, supra, at 354-59 (discussing factors creating “an inherently unequal bargaining relationship between players and owners” in professional football). While we express no opinion on the NFLPA’s ability to win the concessions it desires through organized activity, we reject the notion that an inequality of bargaining power in any industry justifies judicial intervention under the auspices of the Sherman Act. Federal labor law guarantees a process, not any particular result. Thus, it does not “contain a charter for the National Labor Relations Board” — or, we believe, for the courts — “to act at large in equalizing disparities of bargaining power between employer and union.” Insurance Agents’ Int’l Union, 361 U.S. at 490, 80 S.Ct. at 428.

In this regard, we think the recently resolved labor dispute in the National Hockey League illustrates that collective bargaining, instead of litigation, can operate as an effective means of union-employer dispute resolution in professional sports. On January 11, 1995, after a 103-day lockout, professional hockey’s players and owners agreed upon a new collective bargaining agreement. Neither side received everything it wanted. Club owners yielded on the issue of a player salary cap. Players were required to accept limits on free agency. See generally Len Hochberg, Last-Minute Deal Saves NHL Season, Wash.Post, Jan. 12, 1995, at Al. Such is the nature of the collective bargaining process. Most importantly, however, the league now is operating pursuant to terms endorsed by both sides — not terms dictated by a federal court. While this model for dispute resolution may not be perfect, Congress has selected it to govern labor relations in this country, and it certainly is more balanced than the system that would prevail in professional football if its players were free to wield the threat of Sherman Act liability as a negotiating tool.

III. Conclusion

In sum, the clubs and the NFL are exempt from Sherman Act liability in this case. Our holding does not mean that, freed of the threat of treble damages, employers will henceforth seek to force every set of negotiations with employees to impasse so that they may unilaterally implement the employment terms they desire. Employers always face the threat of a strike for such actions. Perhaps more importantly, they face the pressures toward settlement that inhere in an ongoing employer-employee relationship in which each side needs the other to accomplish its goals.

Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion.

Archibald Cox, The Duty To Bargain In Good Faith, 71 Harv.L.Rev. 1401, 1409 (1958).

Nor does our holding mean that the antitrust laws are completely without force where labor agreements are at issue. Employers and unions certainly face liability when they conspire to use a collective bargaining agreement as an economic weapon against their competitors in the product market. See, e.g., Pennington, 381 U.S. at 665-66, 85 S.Ct. at 1590-91; Allen Bradley, 325 U.S. at 808, 65 S.Ct. at 1539. However, where, as here, an alleged restraint on competition imposed through the collective bargaining process affects only the bargaining parties, and has no impact on the product market, the nonstatutory labor exemption shields those parties from antitrust liability. Accordingly, the judgment of the District Court is reversed and the ease is remanded for further proceedings consistent with this opinion.

So ordered.

Footnotes

1

. A first-year player is a player who, in a previous year, attended an NFL training camp but played in fewer than three regular season games.

2

. The other players representing the plaintiff class were James Bishop, John Buddenberg, Gary Couch, Craig Davis, Ricky Andrews, Thom Kaumeyer, Wesley Pritchett, and John Simpson.

3

. Meanwhile, the NFLMC and the NFLPA finally agreed to a new seven-year collective bargaining agreement on January 6, 1993.

4

. Appellees also rely heavily on the Eighth Circuit's discussion of the nonstatutory labor exemption in Mackey v. NFL, 543 F.2d 606 (8th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977), which, they contend, “repeatedly expressed the understanding that the Supreme Court decisions precondition the exemption on an agreement.” Brief of Appellees at 29. However, they overlook the Eighth Circuit's subsequent statement in Powell, 930 F.2d at 1301, that “[a] collective bargaining agreement is not always essential to a finding that challenged employment terms fall within the labor exemption.” We also note, as did the Powell court, id., that other decisions of the courts of appeals have applied the nonstatutory exemption to actions not embodied in collective bargaining agreements. See, e.g., Amalgamated Meat Cutters v. Wetterau Foods, Inc., 597 F.2d 133, 136 (8th Cir.1979) (holding that employer’s agreement with supplier to replace striking workers was protected by nonstatutory labor exemption); Prepmore Apparel, Inc. v. Amalgamated Clothing Workers, 431 F.2d 1004, 1006-07 (5th Cir.1970) (holding that employer’s refusal to deal with union was exempt from Sherman Act), cert. dismissed, 404 U.S. 801, 92 S.Ct. 21, 30 L.Ed.2d 34 (1971).

5

. In this regard, we note that even one commentator who favors imposing a union consent requirement for application of the nonstatutory labor exemption acknowledges that a ‘‘precedent-oriented" approach to this issue is "problematic ... because in no Supreme Court case has union consent been contested.” Note, Releasing Superstars From Peonage: Union Consent and the Nonstatutory Labor Exemption, 104 Harv.L.Rev 874, 881-82 (1991) [hereinafter Releasing Superstars ].

6

. We also note that each of these alternatives has its own set of problems. In particular, those that require a court to determine when it is reasonable to believe a restraint on competition will be incorporated into a future collective bargaining agreement pose severe problems of administra-bility. Further, they are likely to prompt the negotiating parties to distort their positions through posturing designed solely to influence this determination.

7

. The employers’ duty to maintain the status quo even after expiration of a collective bargaining agreement fosters the bargaining process by protecting the union’s position as the representative of the employees on subjects of mandatory bargaining, and by maintaining a stable environment for negotiations. See Katz, 369 U.S. at 747, 82 S.Ct. at 1113; Insurance Agents' Int’l Union, 361 U.S. at 485, 80 S.Ct. at 424. We cannot fathom how subjecting actions taken pursuant to this duty to the threat of antitrust liability could possibly further the goals of the NLRA. Employers faced with such a threat might well hesitate to agree with unions on important terms when they know the union may immediately challenge the terms under the antitrust laws once their agreement expires.

8

. Counsel acknowledged that the restraint on competition at issue in this case had no impact on the quality of professional football competition, and, thus, professional football’s ability to compete with other entertainment products. Specifically, counsel stated:

[W]hat we are talking about here are the salaries that were paid to players who didn’t even suit up, much less play. For them to say that somehow or other the competitive contests] were improved and they could compete better with ballet is like a bootstrap leap into wonderland. There is just no relationship.

Tr. of Oral Argument at 33.

As the quoted statement suggests, the clubs and the NFL contend that the fixed salary does impact the market for professional football contests, but they argue that it has the entirely procompetitive effect of improving the overall quality of NFL competition. Specifically, they assert that the fixed salary provides a disincentive for the most talented rookie and first-year players to agree to being “stashed” on the Developmental Squads of top NFL teams, and thereby makes such players available to less successful teams that need their services immediately. See Brief of Appellants at 8-9, 39-40. Significantly, neither party ever has argued that the fixed salary for Developmental Squad players has any anti-competitive impact on the market for the NFL’s product — the only market involved in this case with which the Sherman Act is concerned.