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Hastings Communications and Entertainment Law Journal

Abstract

The 2011 dispute between the National Football League ("NFL" or "League"), representing the football teams, and NFL Players' Association ("NFLPA," or "Players," or "Players Association"), the union representing its football players, oscillated among the collective bargaining table, the National Labor Relations Board ("NLRB"), and the courts. The League preferred labor law as the matrix of the controversy. The Players preferred antitrust law. Ultimately, the union's most powerful weapon was not to withhold player services in a strike, but to challenge various anticompetitive arrangements wanted by the teams under the antitrust laws.

This article begins with a brief review of the NFL lockout litigation. Then it analyzes the special features of entertainment product and labor markets and recapitulates basic antitrust and labor-law concepts and their application to specific restrictions on competition common in entertainment markets. It argues that overaggressive definition and enforcement of copyright is probably the greatest threat to realization of the fruits of new technologies in the entertainment field. Copyright provides an anticompetitive beachhead for extending anticompetitive mechanisms at least as strong as collective bargaining.

Finally, it explores technology's revolution in major parts of the industry, and explains how there is hope for the future. The technological revolutionnot the present one but the previous one-has already changed the landscape of NFL economics, shifting the most relevant revenue stream to television broadcast revenues. This is a foreshadowing of what is beginning to happen in the rest of the entertainment industry.

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