Here's why I like the Greenbay Packers

From Wikipedia:

The Packers are the only non-profit, community-owned franchise in American professional sports major leagues.[19] Typically, a team is owned by one person, partnership, or corporate entity, i.e., a "team owner." The lack of a dominant owner has been stated as one of the reasons the Green Bay Packers have never been moved from the city of Green Bay, a city of only 102,313 people as of the 2000 census.[20]

By comparison, the typical NFL city has a population in the millions or higher hundred-thousands. The Packers, however, have long had a large following throughout Wisconsin and parts of the Midwest; in fact, for decades, the Packers played four (one pre-season, three regular-season) home games each year in Milwaukee, first at the State Fair Park fairgrounds, then at Milwaukee County Stadium. The Packers did not move their entire home schedule to Green Bay until 1995. County Stadium's replacement, Miller Park, then being planned, was always intended to be a baseball-only stadium instead of a multipurpose stadium.

Based on the original "Articles of Incorporation for the (then) Green Bay Football Corporation" put into place in 1923, if the Packers franchise were to have been sold, after the payment of all expenses, any remaining money would go to the Sullivan Post of the American Legion in order to build "a proper soldier's memorial." This stipulation was enacted to ensure the club remained in Green Bay and that there could never be any financial enhancement for the shareholders. At the November 1997 annual meeting, shareholders voted to change the beneficiary from the Sullivan-Wallen Post to the Green Bay Packers Foundation, which makes donations to many charities and institutions throughout Wisconsin.

In 1950, the Packers held a stock sale to again raise money to support the team. In 1956, area voters approved the construction of a new city owned stadium. As with its predecessor, the new field was named City Stadium, but after the death of founder Curly Lambeau, the stadium was renamed Lambeau Field on September 11, 1965.

Another stock sale occurred late in 1997 and early in 1998. It added 105,989 new shareholders and raised over $24 million, money used for the Lambeau Field redevelopment project. Priced at $200 per share, fans bought 120,010 shares during the 17-week sale, which ended March 16, 1998. As of June 8, 2005, 112,015 people (representing 4,750,934 shares) can lay claim to a franchise ownership interest. Shares of stock include voting rights, but the redemption price is minimal, no dividends are ever paid, the stock cannot appreciate in value (though private sales often exceed the face value of the stock), and stock ownership brings no season ticket privileges. No shareholder may own over 200,000 shares, a safeguard to ensure that no individual can assume control of the club. To run the corporation, a board of directors is elected by the stockholders.

The team's elected president represents the Packers in NFL owners meetings, unless someone else is designated. During his time as coach, Vince Lombardi generally represented the team at league meetings in his role as general manager, except at owners-only meetings, where the team was represented by president Dominic Olejniczak.

Green Bay is the only team with this form of ownership structure in the NFL; such ownership is in direct violation of current league rules, which stipulate a limit of 32 owners of one team and one of those owners having a minimum 30% stake. However, the Packers corporation was grandfathered when the NFL's current ownership policy was established in the 1980s,[21] and are thus exempt. The Packers are also the only American major-league sports franchise to release its financial balance sheet every year.

As I said some 16 years ago, more teams should be organized this way:

Wayne Law Review
Fall 1995


*73 PLAYERS WITHOUT PICKET SIGNS: A PLAN FOR EMPLOYEE OWNERSHIP IN PROFESSIONAL ATHLETICS


James O. Castagnera [FNd1]
Michael R. Ostrowski [FNdd1]

Copyright (c) 1994 by the Wayne State University; James O. Castragnera and Michael R. Ostrowski


Tables of Contents

I. INTRODUCTION..................................................................... 73
II. THE CURRENT QUANDARY OF LABOR RELATIONS IN BIG TIME ATHLETICS.............. 74
A. Background.................................................................... 74
B. Professional Sports and the Antitrust Laws................................ 81
III. THE WAY OUT OF THE QUANDARY: EMPLOYEE OWNERSHIP AND PARTICIPATION.......... 87
A. A Brief Survey of the Current Status of Employee Ownership and Participation in the United States...................................................................................................................... 87
B. Labor Law and ESOPS.......................................................... 96
C. Employee Participation....................................................... 100
IV. OWNERSHIP INSTEAD OF EMPLOYMENT: A MODEST PROPOSAL........................... 111


I. INTRODUCTION

As the boys of summer walked off the field for the last time in 1994, and the men of the ice were informed not to lace up their *74 skates in the same year, feelings of anger and frustration arose in almost every sports fan. [FN1] The resounding question, “What has happened to the sports world?” and the answer, “greed,” naturally followed each sport's work stoppage. [FN2] Yet a deeper question was pondered by many: not what, or why, but “How did this happen, and what, if anything, can or should be done to remedy it?”

II. THE CURRENT QUANDARY OF LABOR RELATIONS IN BIG TIME ATHLETICS


A. Background

With the enactment of the National Labor Relations Act [FN3] in 1936, management and unions alike were required to negotiate collective bargaining agreements, which govern the terms and conditions of employment between the contracting parties. These terms and conditions include working hours, holidays, protection from reprisals against employees for union support or opposition, the right to strike, and the right to a lock out. Generally speaking, the National Labor Relations Act was enacted and amended to protect both workers' and employers' rights to fair labor practices, safety, and economic protection. [FN4]
Historically, individual laborers were without bargaining *75 power. Through the National Labor Relations Act, Congress ostensibly leveled the playing field, finally affording such workers the power that organization and numbers can afford. [FN5]
When the words “organized labor” are heard, images of blackfaced mine workers striking for safe conditions, police using riot gear to quell a violent labor demonstration, and such colorful labors leaders as Jimmy Hoffa come to mind. A description of the Homestead Steel Strike of 1892 captures the essence of the early labor movement:
In June, 1882, in Homestead, Pennsylvania, the steelworkers' union struck in protest against a reduction of wages by the Carnegie Steel Company. The company had ordered the wage cut in a deliberate effort to crush the union, and in expectation of battle, set about erecting a military stockade topped with barbed wire behind which it planned to operate the miles with three hundred strikeworkers recruited by the Pinkerton Agency. … On July 5 the strikebreakers … were to be brought in to operate the plant. When they were ferried in armored barges across the Monongahela and were about to land, the strikers attacked with homemade cannon, rifles, dynamite and burning oil. The day of furious battle ended with ten killed, seventy wounded, and the Pinkertons thrown back from the plant by the bleeding but triumphant workers. [FN6]
However, there are other images that can come to mind in the 1990s: an empty ice rink, a vacant ballpark, two negotiators representing multi-millionaires squabbling over issues of salary caps, arbitration, and the amateur draft, and the echoing sounds of *76 silence in the stadiums. The concepts and tactics of labor law have become blended with the rules and rituals of children's games played by adults in a weird and surrealistic pageant of greed that belies the historic meaning of the labor movement. [FN7]
As far back as professional sports go, so too does the struggle between sports' labor and management, paralleling the tensions between labor and management in a vast number of labor-intensive industries. [FN8] Management, in this case team owners, has historically desired its own terms to increase revenue and decrease costs, just as labor, in this case players, has consistently tried to maximize its income and to work under its own terms. As far back as the late 1800s, the ever-ringing terms of “salary cap” and “free agency” existed in professional sports. [FN9] In the late 1800s, the owners of the National League, the professional baseball league, imposed a reserve system for the entire league and a $2,000 per year salary cap for each team. [FN10] Generally, the reserve system is the mechanism by which each team is able to “own” a player's rights for a certain period. [FN11]
As organized labor began to affect the industrialized workplace, so too did it sneak into the world of sports. The first documented sports organization designed to consolidate players' power against the league and owners, the National Brotherhood of Baseball Players, was formed in the late 1800s. [FN12] The Brotherhood's main *77 concern was to challenge the above-mentioned reserve clause and team owners' salary cap. [FN13] However, it was not until the 1950s that all four major sports formed players' organizations. [FN14] It took until at least the 1960s for these player organizations to begin to engage fully in collective activities. [FN15]
From that point on, professional sports would never be the same. Slowly but inevitably fading were the days of absolute reserve systems and unilaterally-imposed salary caps; slowly but inevitably arriving were the days of free-agency and multi-million-dollar salaries. As this trend progressed, sports fans learned such terms as “collective bargaining,” “collusion,” and “arbitration.” Before they knew it, they were paying to watch men who made more money in six to nine months than many people make in a lifetime. [FN16]
As this Article was being written, all four major sports groups, the Major League Baseball (MLB), the National Football League (NFL), the National Basketball Association (NBA), and the National Hockey League (NHL), were experiencing “labor pains.” The collective bargaining agreement between MLB and its players *78 was originally set to expire, by its terms, at the end of the 1993 season; however, the owners exercised their contractual right to reopen negotiations and essentially wipe out the last year of the collective bargaining agreement. [FN17] The negotiations deteriorated and ultimately resulted in a strike that lasted from mid-August 1994 into 1995's spring training season.
The material issues at the table included caps on players' salaries, arbitration, and free agency. [FN18] The owners declared an impasse and unilaterally instituted their proposals, along with filing a charge with the National Labor Relations Board (NLRB) asserting that the players were not negotiating in good faith. [FN19] In response, the players filed a charge of their own with the NLRB, alleging that the owners were in violation of the NLRA by not negotiating in good faith. [FN20] The owners decided to use non-union players for the pre-season “Grapefruit League” [FN21] games during the time that no agreement existed between the union and the league.
The NHL was also having problems with the labor process in 1994-95. The NHL collective bargaining agreement expired in *79 September 1991. The players played without a collective bargaining agreement until just before the playoffs at the end of the 1991-92 season. At that time, they went on strike and delayed the start of the playoffs. This was the NHL players' first strike ever. [FN22] Part of the strike settlement provided an interim one-year contract for the 1992-93 season. [FN23]
The NHL played with no collective bargaining agreement throughout the entire 1993-94 season, but also without a strike. However, as no agreement was in effect by the beginning of the 1994-95 season, NHL Commissioner Gary Bettman, acting on behalf of the owners of the NHL franchises, declared a lockout on October 1, 1994. [FN24] Eventually the commissioners and owners gave the players a deadline: If there were no agreement by January 16, 1995, the season would be canceled. [FN25] Had this occurred, it would have been the first time in the history of the four major sports leagues that an entire season was canceled on account of labor relations problems. [FN26] Fortunately for the players, owners, and fans, a six-year agreement was established on January 11, 1995, salvaging an abbreviated 1995 season. [FN27]
As for the NBA, a similar problem, but with different results, was taking place as this Article was being written. The collective bargaining agreement governing the NBA expired at the conclusion of the 1993-94 season. [FN28] There has been no new agreement to date. However, perhaps learning from, and taking advantage of, the failures of baseball and hockey, NBA Commissioner David Stern declared prior to the start of the 1994-95 NBA season that there would be no lockout. Accordingly, the players promised there *80 would be no strike. [FN29] As a result, with no MLB or NHL coverage, the NBA was the only professional sport telecast nightly in the autumn of 1994.
Of the ‘big four’ professional sports leagues, only the NFL and NHL had collective bargaining agreements in effect at the time of this writing. The NFL players, represented by Gene Upshaw, apparently negotiated away the free agency that was granted in a court case discussed later in this Article. [FN30] The owners apparently received what the owners in other sports wanted — a salary cap. [FN31]
Simply put, salary caps work by creating an allotted maximum team salary, which may not be exceeded, for all players in each franchise. [FN32] The NFL's owners expect, and its players fear, that this will hold salaries down to an “artificial” level, keeping them from escalating to the astronomical multi-million-dollar levels that some baseball players enjoy. [FN33] Whether or not this is a good deal for *81 players, one thing is clear, professional football exists without the threat of a work stoppage.

B. Professional Sports and the Antitrust Laws

In 1890 the United States Congress enacted the Sherman Antitrust Act. [FN34] This legislation prohibits in general any action that restrains “trade or commerce among the several states or with foreign nations” [FN35] and forbids the formation or attempt to form a monopoly over an area of “trade or commerce among the several states or with foreign nations.” [FN36] Ordinarily, one might think of railroad tycoons or oil barons when antitrust or monopolies are discussed. However, the issue has been most common in the area of professional sports.
Indeed, antitrust is perhaps one of the most frequently litigated issues in professional sports. [FN37] Baseball started the trend with a series of cases challenging the sport's reserve system on the basis of antitrust. Although several cases are reported, [FN38] perhaps the most well-known antitrust case to date in sports is Flood v. Kohn. [FN39] In Flood, a baseball player named Curtis C. Flood challenged MLB's reserve system on the basis of antitrust when he was traded from the St. Louis Cardinals to the Philadelphia Phillies, a move he did not want to make. MLB Commissioner Bowie Kuhn refused to *82 declare him a free agent. [FN40] The Supreme Court held that professional baseball should continue to enjoy its exemption from antitrust laws, [FN41] relying on its prior opinions in Federal Baseball Club v. National League, [FN42] and Toolson v. New York Yankees, Inc. [FN43] The Court based its decision, inter alia, on the antitrust exemption in Flood and the lack of congressional action following Federal Baseball and Toolson. [FN44]
Based on Flood, many might assume that all major professional sports enjoy antitrust exemption. However, that is not the case. The Supreme Court has held in a number of cases that professional football, boxing, basketball, hockey, and golf are all subject to federal antitrust laws. [FN45] Although it does not necessarily make much legal sense that one professional sport association enjoys an exemption while the others do not, that is the state of affairs today. [FN46] Perhaps the recent baseball turmoil will stimulate a new challenge or even congressional action.
With antitrust liability alive and well in most professional sports, it seems inevitable that players will continue to challenge *83 management policies, such as the draft, reserve clauses, and salary caps, on antitrust grounds by alleging a restraint of trade and commerce by the owners. However, although these policies constitute antitrust violations in all sports except baseball, as set forth in Flood, [FN47] the players are not home free yet. An anti-trust hurdle still exists for players in the form of a non-statutory labor exemption to the antitrust laws, which establishes protection for both employers and employees from antitrust violations under certain circumstances.
The non-statutory labor exemption, as described in Mackey v. National Football League, [FN48] favors collective bargaining for policy reasons if the restraint on trade affects only the parties to the contract, the exempted issues are mandatory subjects of collective bargaining, and the bargaining by which the challenged agreement was achieved was done in good faith at arm's length. [FN49] The rule so clearly stated in Mackey was taken one step further in Bridgeman v. NBA, [FN50] when NBA players challenged the policies of the NBA draft, the salary cap, and the reserve system under antitrust statutes. [FN51] The twist here, however, was that at the time of the action, there was no effective collective bargaining agreement between the players and owners. [FN52] The Bridgeman court engaged in a thorough examination of the underlying policies for the non-statutory labor exemption. The court reemphasized the Mackey view of the exemption and stated that “the exemption encourages substantive, good faith bargaining on important issues and guards against unilateral imposition of terms as to which there is no agreement.” [FN53] The court proclaimed the players' claims meritless, and concluded that the restrictions in a collective bargaining agreement should not lose their antitrust immunity the moment *84 the contract expires. It continued that if the owners were to unilaterally alter the provisions prior to an officially declared impasse, then the owners might be guilty of an unfair labor practice. [FN54] In general, terms of an expired collective bargaining agreement that are mandatory subjects of bargaining survive the expiration of the contract. [FN55]
Yet another view was taken in Powell v. National Football League, [FN56] which was filed after the collective bargaining agreement had expired and an impasse had occurred. Several earlier cases, in several sports, had unsuccessfully challenged the non-statutory exemption to antitrust. [FN57] However, the 1991 Powell case added one more variation: In addition to having no collective bargaining agreement, the NFL players voted (60%) not to have the National Football League Players Association (NFLPA) represent them. [FN58] The NFL argued that the NFLPA had to be officially decertified by the NLRB. The court disagreed with the NFL, holding that no formal NLRB proceeding was needed to decertify the NFLPA for two reasons: (1) a majority had voted to revoke the NFLPA's authority to bargain, and (2) the NFLPA agreed that it no longer represented the players. [FN59] The court then found that, as there was no collective bargaining agreement and no bargaining representative, the players were no longer part of an “ongoing collective bargaining relationship.” [FN60] Therefore, the impact of the antitrust laws was not mitigated by the non-statutory labor exemption, and *85 the players in the suit were declared “free-agents,” free from the confines of the reserve system. [FN61]
In light of the above-mentioned cases, especially Powell, and the current unsettled state of the four major professional sports leagues, several scenarios could occur. One possibility is that one or more of the presently-functioning players unions could be decertified. Decertification is the process by which the NLRB formally withdraws representation rights from a union, effectively stripping it of its legal capacity to speak for a particular bargaining unit in labor negotiations. [FN62] As demonstrated in Powell, some courts may not even require a decertification to acknowledge a lack of authority for a union to negotiate on players' behalf. [FN63]
Would decertification benefit professional athletes? One might approach this question by first noting that professional sports players are analogous to entertainers, selling their talents to owners who, in turn, sell the talents of a whole team or league to the public. It is common knowledge that thousands of people jam into crowded stadiums on a regular basis to witness sport spectacles in person. It is also further true that, on any given day, one need only turn on the television to see professional sports on a number of channels. In fact, a substantial portion of the total revenue produced by professional sports comes from television broadcasts. [FN64] The similarity between professional sports and other areas of the entertainment industry is striking. In both the professional sports industry and the entertainment industry, notably movies and television, management is highly dependent on the talents of the workforce, the workers are fully aware of their worth and power, and the industry is subject to a “star system.” Commentator Paul Staudohar describes this system as one in which “exceptionally talented people dominate the worker hierarchy.” [FN65] The top performers in both movies and sports command extraordinarily high *86 salaries. For example, compare sports stars such as Lenny Dykstra or Eric Lindros to movie stars such as Tom Cruise or Paul Newman. Yet, at the same time, the bulk of the workforce accepts lesser wages and exerts a smaller influence. These lesser players and actors can be said to be easily replaceable, from the extra in a street scene in a movie production to the third-string lineman on a last place football team, let alone the player on a baseball “farm” team. The plight of marginal players and actors is the obvious justification for labor unions in both professional sports and the entertainment industry. [FN66]
It follows that the athletes in greatest need of representation are those players not yet in the big leagues. Those on the outside looking in, such as college or “farm league” players, are the ones who lack bargaining power.
Traditionally, the four major professional sports obtain the majority of their young talent via the entry draft. [FN67] The entry draft is a series of “picks” in which each professional sports team claims the playing rights of certain individuals. [FN68] These individuals are then bound by the above-mentioned principles of a reserve system, under which their right to play in that particular league is owned by the selecting team. [FN69] Generally, the entry draft is one of the elements set forth in a collective bargaining agreement. [FN70]
Therefore, under the draft system, a young player at first has no influence with whom he negotiates, nor does he generally have the bargaining power to negotiate individually without the force of mandatory provisions of a collective bargaining agreement. [FN71] Without such bargaining power, pre-entry players, with the exception of a few elite, may most need the protection afforded by *87 a collective bargaining agreement. Unfortunately for them, college athletes and “farm club” players are not unionized. [FN72]
Thus, professional sports at their uppermost levels pose an interesting and perplexing predicament. Only those “workers” with the least need for labor unions actually have them. [FN73] It makes good sense for baseball's “farm” players, and even collegiate athletes, to consider unionization. [FN74] However, that is beyond the scope of this Article.
Rather, having postulated that a significant source of labor unrest in the upper strata of professional athletics is the incongruence between American labor law and its collective bargaining scheme, on the one hand, and the composition of the relevant collective bargaining units, on the other, this Article proposes to explore what appears to be the most promising alternative to the currently unsettled and highly unsatisfactory state of affairs.

III. THE WAY OUT OF THE QUANDARY: EMPLOYEE OWNERSHIP AND PARTICIPATION


A. A Brief Survey of the Current Status of Employee Ownership and Participation in the United States

In August 1991 two Rutgers University professors reported the existence of 10,000 employee ownership companies in the U.S. in 1991, covering 10.8 million participating employees or 12.5% of the private sector work force representing 3% of the value of all public and private stock in the nation. Nine thousand of these firms are closely held corporations with an estimated 6.5 million employee *88 participants and a market value of $20 billion or .7% of the total market value of all corporate stock. One thousand of these firms … are publicly traded corporations covering an estimated 4.3 million participants with a market value of $100 billion or 2.3% of the total market value of all corporate stock. Closely held corporations represent 90% of employee ownership companies but only 60% of employee participants, while publicly traded corporations represent 10% of employee ownership companies but 40% of employee participants. [FN75]
Although organized labor today represents a rather paltry 16.6 percent of U.S. workers, as against some 35 percent in 1950s, labor's downward drift shows signs of having bottomed out. [FN76] Whether or not the four-decade downward trend will reverse itself, and regardless of whether such a reversal would be welcome, employee participation — with or without labor union involvement — is seeping into, and subtly altering, the dictatorial-confrontational model of free enterprise management in the United States. [FN77] Japanese success in world markets, especially in the United States, has focused attention upon the place of cooperation in Nipponese management theory and practice. [FN78] This in turn raises questions about the continuing utility of the U.S. model of labor-management confrontation across collective bargaining tables and picket lines. [FN79] *89 All four major sports leagues are experiencing “labor pains.” [FN80] In similar circumstances, a number of corporations, including some of the major players on the corporate scene, have felt inspired or compelled to experiment with workplace cooperation and even democracy. [FN81]
In recent years, some U.S. companies have instituted employee participation programs. These programs have taken the form of “quality circles,” … “employee teams,” etc. In general, the function of these programs is to involve employees in the process of making decisions about the work that they perform, the conditions under which they perform it, and the benefits and compensation they receive for such performance. The goals of these employee participation programs include the improvement of workplace efficiency, product quality, productivity, and morale. [FN82]
Employee ownership in the form of employee stock ownership plans, commonly referred to as ESOPs, is another form of employee participation. ESOPs can provide tax advantages, a fresh influx of needed capital, and perhaps even protection from a hostile takeover attempt. [FN83] However, both ESOPs and other employee participation programs are beset by practical [FN84] and legal problems. [FN85] *90 Unions do not necessarily embrace such concepts, even when the alternative may ultimately be enterprise failure. [FN86] Additionally, both ESOPs and participation programs potentially can run afoul of the National Labor Relations Act. [FN87] Nonetheless, the trend in favor of these two concepts is a rising one.
One reason for the increasing popularity of ESOPs and other broad-based employee ownership vehicles is that, unlike other employee benefits, they are more than just an additional form of remuneration for services rendered: ESOPs offer employees a personal stake in the enterprise they serve. [FN88] As such, they go straight to the core of the capitalist system. Workplace participation also allows workers to have a visible impact upon their economic destinies. This is especially pertinent to major league sports, as each team's win-loss record and daily fan attendance can reflect such a destiny.
A century and a half ago, Karl Marx argued that workers were alienated from the tools and the fruits of their labors, both of which were in the possession of the capitalist class (or bourgeoisie), who owned and controlled the means of production. [FN89] Later, labor unions and new laws, which approved and even encouraged unions, helped workers in the United States and other democratic countries to gain greater bargaining power against capital and management. [FN90] And so, for most of this century labor-management relations in the United States settled into a pattern of confrontation on the picket *91 lines and collective bargaining at the negotiating tables. [FN91] Big Business confronted Big Labor. At the same time Big Business seemed to mimic Big Government in its burgeoning bureaucracies.
Does all this talk of worker alienation seem out of place in the rarified realms of big-time professional athletes? Well, it is not. Numerous commentators and observers have noted the labor-management confrontations outlined in Part I of this Article, as well as the attitudes — ranging from indifference to outright hostility — manifested by many professional athletes toward their home cities and their fans. [FN92]
By contrast, companies with ESOPs frequently report significant increases in employee productivity and commitment. For instance, in April 1990 at the Ninth Annual Conference on Employee Ownership and Participation, held in San Francisco, three major corporations reported on the impact of their ESOPs. [FN93] One, a copper mining company from Michigan's Upper Peninsula, reported:
People take greater care of and interest in property they own. We were able to get the same productivity with 1,000 workers after the [ESOP] as we'd gotten before with 1,600. I don't need to see actuarial tables. It's obvious to me that you get increased productivity with employee ownership, unless you try hard to screw it up. [FN94]
Although ESOPs may have originally been conceived to encourage employees to bail out their ailing employers, they are now more broadly viewed as a better means of distributing corporate wealth without governmental involvement, thereby *92 enhancing workers' commitment, productivity, and competitiveness. In the words of former Louisiana Senator Russell B. Long:
Employee stock ownership has much to recommend it not only for employees and for employers but also for the U.S. economy and for American society at large. Employee-owners typically become more motivated and more dedicated. Work quality and workplace creativity increase; productivity and competitiveness improve; absenteeism and turnover decline. [FN95]
Another objection may be that employee ownership cannot be adopted to big league athletics. But ESOPs, despite their relatively short history, have been adopted by a wide variety of businesses. In the words of one knowledgeable commentator, “Over the past several years there has been a geometric increase in the number and size of large leveraged employee stock ownership plans' … acquisitions of stock from major public corporations.” [FN96] For instance, in July 1988, an ESOP acquired some fourteen percent of Polaroid Corporation's outstanding common stock. [FN97] Polaroid's purpose in transferring this large block was defensive: to ward off an unfriendly takeover attempt by Shamrock Holdings, Incorporated. [FN98] Other ESOPs have acquired substantial quantities of convertible preferred stock in their respective corporations since the Polaroid ESOP purchase. For example:
Company Stock Issue (in $millions) [FN99]
Proctor & Gamble $1000
J.C. Penney 700
Texaco 500
Cabot Corp. 75
Emery 28

*93 In 1986, the National Center for Employee Ownership (itself a sign of the times) estimated that there were more than 8,000 entities owned wholly or partially by an ESOP. [FN100] Noteworthy examples continue to abound. For instance, when American Stores Co., a food retailer headquartered in Salt Lake City, put its Philadelphia-based Acme Markets Inc. on the block in 1991, Local 1776 of the United Food and Commercial Workers Union joined the bidding on behalf of the Acme rank and file workers whom Local 1776 represented. [FN101]
An ESOP has been briefly defined as “a funded employee benefit plan in which some or all of the plan assets must be in the form of sponsoring employer stock.” [FN102] A more detailed definition is provided in the Employee Retirement Income Act (ERISA): “ A stock bonus plan which is qualified, or a stock bonus plan and money purchase plan both of which are qualified, under Internal Revenue Code section 401 , and which is designed to invest primarily in qualifying employer securities ….” [FN103]
*94 Section 401 of the Internal Revenue Code requires that: (1) the contributions to the plan trust be made by the “employer, or employees, or both, or by another employer who is entitled to deduct his contributions under § 404(a)(3)(B) … for the purpose of distributing to the employees or their beneficiaries the corpus and income of the fund accumulated by the trust;” (2) under the trust instrument the corpus and income of the trust are to be used for the exclusive benefit of the employees and their beneficiaries; (3) the plan satisfies the minimum participation standards of section 410 of the Internal Revenue Code; and (4) the “contributions or benefits provided under the plan do not discriminate in favor of employees who are — (A) officers; (B) shareholders, or (C) highly compensated.” [FN104] In fact, an ESOP is “a special breed of qualified retirement plan.” [FN105] ESOPs are distinguishable from other types of employee ownership, including unqualified stock bonus plans, [FN106] employee stock purchase plans, and worker cooperatives. [FN107]
Experts typically divide ESOPs into three general types: ordinary or non-leveraged, leveraged, and tax credit ESOPs. [FN108] Before exploring these three types in some detail, first consider common components shared by all ESOPs.
Perhaps the most fundamental component of all ESOPs is the requirement that the plan documents must expressly state that it is an ESOP. [FN109] Second, the plan participants, that is, the employees, must have individual accounts, with employer contributions *95 allocated to these accounts on a pro rata basis. These accounts must be held in a trust. [FN110] The trust must have one or more trustees. [FN111]
An ESOP's trustees have the exclusive authority to manage the plan's assets. [FN112] Under ERISA, a plan's trustees are fiduciaries, [FN113] subject to specific duties and obligations. [FN114] Trustees can delegate some or all of their authority, provided that the plan expressly provides for it. [FN115] For example, the trustees may have the power to appoint an investment manager. [FN116]
As suggested above, an ESOP is distinguishable from a stock bonus plan primarily in that the ESOP contributions consist of, or are invested in (overwhelmingly if not always exclusively), the contributing employer's securities, while the trustees of a *96 “standard” stock bonus plan would be considered imprudent in making such an investment. [FN117] Indeed, ERISA generally prohibits a non-ESOP plan from holding more than ten percent of the fair market value of its assets in qualifying employer securities. [FN118] An ESOP is a variation of a tax-qualified stock bonus plan, or a combination stock bonus and money purchase plan under the Internal Revenue Code. [FN119] However, ERISA specifically exempts ESOPs from the ten percent limitation, as long as the plan documents expressly provide for such acquisitions. [FN120]
To summarize the concepts introduced in this section: a typical ESOP is a stock bonus plan that receives employer contributions invested in that employer's securities (stock), and that is organized as a trust managed by trustees for the benefit of the employee-participants or their beneficiaries. As such, it must meet requirements under both ERISA and the Internal Revenue Code. [FN121]

B. Labor Law and ESOPS

ESOPs came of age during the 1970s and 1980s, when workers in the Rust Belt tried to purchase plants that their longtime employers — usually major steel, auto, and other manufacturing corporations — planned to close. [FN122] Typically, these employees were unionized; consequently, they looked to their unions for leadership in negotiating and overseeing any such buyout. Legally, the union may be placed in a potential conflict of interest when its leadership sits at both the board of directors and the bargaining tables, as the *97 following case makes clear. [FN123]
In Richfield Oil Corp., [FN124] the National Labor Relations Board (NLRB) was asked to decide whether establishment of an ESOP fell within the area of mandatory collective bargaining. [FN125] One argument raised by the employer, in refusing to negotiate with the union about the ESOP, was that the union might end up on both sides of the bargaining table, dividing its loyalty between ownership and employee interests, between stockholder employees and nonstockholder employees, and between those employees who aspire to be investors and shareholders and those who do not. [FN126]
The NLRB, in holding that the stock purchase plan was a mandatory subject of bargaining, rejected the employer's arguments:
[I]t is sufficient to point out that under the Act the exclusive representative of employees is entitled to represent those employees, including the stockholders, among them, only in their capacity as employees. At the bargaining table, therefore, the statutory representative cannot act, and the employer need not bargain with it, except as the representative of employees as such, and only with respect to “rates of pay, wages, hours of employment, or other conditions of employment.” And, even in these areas, it may be appropriate to point out to those who are inclined to equate an employer's obligation to bargain with a complete and abject submission to every union proposal, the Act, in the words of the Supreme Court, “does not compel any agreement whatsoever between employees and employers.” On the occasion of stockholder meetings, corporate elections, or any other matter in which only stockholders have the right to be heard, the union has no *98 voice whatever as a statutory representative. [FN127]
The appellate court, in approving the NLRB's holding on this issue, suggested that Richfield's fears of union control of managerial prerogatives were ill-founded, noting that the company retained control of its contributions into the plan for a long period of time and that it had reserved the right to terminate the plan at will. [FN128] The labor board had also considered the issue:
[T]he Respondent asserts that the union would be able to pool stockholder-employees' voting rights and that it is not uncommon for minority stockholders to hold the balance of power in corporate affairs. However, neither on the basis of precedent nor upon de novo consideration of the issue involved do we find in these arguments any justification for the result contended for by the Respondent. [FN129]
Thus, in Richfield the NLRB in effect did consider and reject the contention that a union cannot represent and bargain for employees of an employee-controlled company, addressing the contention in the context of minority control. [FN130]
No case or NLRB decision since Richfield extends its holding to a situation in which the employees own more than fifty percent of a company's stock. A possible explanation for this apparent dearth of decisions is that the forums and parties have accepted the underlying principle that “the bargaining representative was entitled to represent the employees who were stockholders only in their capacity as employees.” [FN131]
*99 In Winn-Dixie Texas, Inc. d/b/a Foodway, [FN132] the employer, in refusing to bargain over a stock purchase plan, tried to distinguish Richfield. Winn-Dixie's ESOP required direct purchase of shares at a discounted rate by employees without company contribution. [FN133] The NLRB concurred with the administrative law judge, who held that the plan constituted both a benefit and a term and condition of employment, and thus was a mandatory bargaining subject. The administrative law judge stated:
Implicit in this finding is the determination that the plan confers upon eligible employees a potential pecuniary advantage flowing from the opportunity accorded eligible employees through the plan to invoke their option to purchase stock of the Company on a partial extension of credit and at a discount from fair market value with the consequential opportunity for capital gain realization. … It is, of course, true, as Respondent contends, that the plan here under scrutiny appears, in contrast to the plan which was the subject of evaluation in Richfield Oil, to place emphasis on stock acquisition rather than stock accumulation and, contrary to the plan in Richfield, provides for no monetary contribution on the part of the employer. However, given the character of the benefit accorded employees by the plan, these considerations form an insufficient basis, in my opinion, for excluding the instant plan from the realm of mandatory bargaining topics. [FN134]
Significantly, the NLRB in Winn-Dixie did not pause to reconsider the issue of the union's right to represent employee-shareholders, if indeed Winn-Dixie bothered to raise it at all.

*100 C. Employee Participation

Although employee participation attempts vary, three general approaches to employee participation, according to power and purpose, can be discerned: (1) problem solving team approach; (2) special purpose team approach; and (3) self-managed team approach. [FN135] Each of these approaches is further explained below.
Problem Solving Team: Typically these consist of five to a dozen volunteers who gather together for a few hours every week in search of ways to improve quality, efficiency, and on-the-job environment. Problem solving teams do not usually have the power to implement their ideas. Quality circles, depending upon who is using the term, are either a subset or are synonymous with the problem-solving team. [FN136]
Special Purpose Team: An example of this approach exists at Moog, Incorporated, where the company's so-called continuous improvement teams trace their roots to a special-purpose team whose purpose was to solve the problem of overseas shipping costs. [FN137] Special-purpose teams may come up with and introduce new technology and reform workplace practices. A team may also deal directly with customers and suppliers. [FN138]
Self-managed Team: This may be the model that enters most people's mind when the term team is mentioned. Here a team, typically five to fifteen employees, learns all production tasks. For example, in the assembly of an automobile, team members will rotate from job to job over time. Managerial duties, such as work schedules and purchasing functions, are an integral part of the self-managed *101 team's approach. [FN139]
In outlining the three approaches above, the word typical has been used repeatedly. Atypical in the United States, but more common in other cultures are:
Work Councils: Conceptually, work councils are similar to collective bargaining, as corporate decisions are made on employment and production variables through discussion and negotiation between rank and file and management. [FN140]
Co-determination: Moving substantively beyond consultation and negotiation, and beyond the circumscribed autonomy of the self-managed team, co-determination provides near parity for employees on the company's board of directors. In labor-managed firms the employees enjoy domination. [FN141] It is difficult to find examples of this model in the United States, or even imagine them in the absence of broad-based employee ownership in tandem with control. [FN142]
As with broad-based employee ownership, altruism is seldom the motivating force behind employee participation programs. As the case studies in this section reflect, employers are motivated by enhanced profits through increased employee productivity and creativity. [FN143] Research indicates that employee participation does indeed pay off.
*102 The willingness of firms to involve employees in decision making seems to be on the rise. Reasons for this trend include concerns about productivity and foreign competition. As a result, a good deal of research has examined the effect of participation, both actual and perceived, on a variety of outcomes. Naturally a good deal of the research has focused on productivity measures. Some research, however, has studied the link between participation and job satisfaction. This research has generally found a positive, albeit smaller than expected, correlation between participation and satisfaction. Those employees who perceived themselves to be more involved in decision making were also more satisfied with their jobs. [FN144]
A reason for the positive correlation between employee participation and job satisfaction being somewhat smaller than expected may be, as with broad-based employee ownership, that employees are expected to forgo higher wages and salaries in return for bonus and incentive compensation opportunities. For instance, the following occurred at the Saturn plant:
By June 1985, GM and the UAW agreed on a revolutionary labor contract, one that places union members' base pay at eighty percent of the average for the unionized auto industry. Through productivity incentives, workers — all of whom are salaried — can boost their wages to the average, or higher. [FN145]
Obviously, such compensation plans will please some *103 employees but threaten others. [FN146] More difficult legal issues surrounding employee participation programs relate to their impact on collective bargaining relationships in unionized firms.
Are all employee participation programs unlawful under the National Labor Relations Act (NLRA)? Are any of them? The National Labor Relations Board struggled with these questions in Electromation, Inc. [FN147] In the words of one legal commentator,
The case involves a small electrical parts maker in Elkhart, Ind., called Electromation, Inc. In late 1988, after a year of heavy losses, management skipped wage hikes for its 200 workers. When employees objected, the company set up committees — each with up to six hourly workers and one or two managers — to deal with problems such as absenteeism and pay scales for skilled workers. [FN148]
Soon after these committees were formed, the Teamsters commenced an organizing drive at the company and filed an unfair labor practice charge, complaining that the committees violated section 8(a)(2) of the NLRA. [FN149] This section of the law states in pertinent part: “It shall be unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” [FN150] In deciding Electromation, the NLRB had to answer two fundamental questions: (1) At what point does an employee *104 committee lose its protection as an unregulated communication device and become a labor organization?, and (2) “What conduct of an employer constitutes domination or interference with the employee committee” as a labor organization? [FN151] Section 2(5) of the NLRA is implicated in the first question. The section defines “labor organization” as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” [FN152] This creates “a dilemma for the NLRB. The Wagner Act NLRA seems to prohibit many team activities …. But that wasn't its intent. Rather, it was meant to keep companies from setting up sham unions that undercut legitimate ones, a common 1930's maneuver.” [FN153] Senator Wagner, the NLRA's chief sponsor and namesake, said: “The greatest obstacles to collective bargaining are employer dominated unions… T he very first step toward genuine collective bargaining is the abolition of the employer dominated union as an agency for dealing with grievances, labor disputes, wages, rules, or hours of employment.” [FN154] “ S ection 8(a)(2) lay very near the heart of the original act, and it remains an important part of the NLRA today. The issue is whether employee participation programs are compatible with it .” [FN155]
Employee participation plans in the 1990s are a far cry from the employer-sponsored sham unions of the 1930s, but the statutory language could be seen as covering both. For example, the statutory definition of “labor organization” contains, essentially, three elements: “(1) employees must participate in it; (2) one of its purposes is to ‘deal with’ the employer; (3) the ‘dealing’ must concern grievances, labor disputes, wages, rates of pay, hours of *105 employment or conditions of work.” [FN156] At first glance, employee participation programs meet at least some of these criteria.
Element (1) is almost always a given. However, the participants must be “employees” in two regards: (1) as that term is understood by the U.S. common law of master-servant, that is, not independent contractors, and (2) as defined in the NLRA, that is, not “any individual employed as a supervisor.” [FN157] If an employee committee is vested with sufficient authority, as some special-purpose and self-managed committees may be, [FN158] then by virtue of serving on the committee, rank and file workers may be turned into “supervisors” for purposes of the Act. [FN159] Organized labor usually does not assert this categorization, because the “teams usually deal only with their own jobs, not with those of other workers, as Electromation's did.” [FN160] By and large, the first prong of the test is almost always present.
The second element of the litmus test for a labor organization is that one of its purposes is to deal with the employer, in this situation the team owners. [FN161] This “has been the source of much litigation.” [FN162] As long ago as 1959, in NLRB v. Cabot Carbon, Inc., [FN163] the Supreme Court found that “deal with” means more than merely to bargain collectively with an organization. In that case, Cabot *106 Carbon, Incorporated set up employee committees in each of its plants and a central committee composed of plan chairpersons. The committee's bylaws stated:
[T]he purpose of the Committees is to provide a procedure for considering employees' ideas and problems of mutual interest to employees and management; … that each plant Committee shall meet with the plant management at regular monthly meetings and at all special meetings called by management, shall assist the plant management in solving problems of mutual interest …; and that “It shall be the Committee's responsibility to … [h]andle grievances at non union plants and departments according to procedure set up for these plants and departments.” [FN164]
The Court of Appeals for the Fifth Circuit ruled that the maintenance of employee committees did not constitute an unfair labor practice because “dealing with” was the equivalent of “bargaining with” the employer, something the company's unions, not its employee committees, did. [FN165] The Supreme Court disagreed: “Certainly nothing in the NLRA indicates that the broad term ‘dealing with’ is to be read as synonymous with the more limited term ‘bargaining with.’ The legislative history of § 2(5) strongly confirms that Congress did not understand or intend those terms to be synonymous.” [FN166]
This does not mean that employee committees will always be considered as “dealing with” the employer. “[I]f the committee has the power to decide and implement matters by itself, without the need to seek or obtain employer approval, then the element of ‘dealing’ may be missing, and the committee may not be a labor organization.” [FN167] This point goes hand in hand with the earlier one that personnel wielding such authority may not be employees as *107 defined by the NLRA.
In the shadow of this Supreme Court guidance some courts have distinguished “between ‘dealing with’ and the gathering of ideas and information” through discussion. [FN168] Problem solving teams are an example of the latter. The leading decision to so hold is Airstream, Inc. v. National Labor Relations Board, [FN169] in which the Court of Appeals for the Sixth Circuit stated:
Perhaps the most important element of the Union's complaint was Airstream's formation, in late February, of the “President's Advisory Council” (PAC). For some time before the election campaign began, the company had held “rap sessions” in which employees, on a rotating basis, attended monthly meetings in which [the president] would invite questions and suggestions.
… [I]t is clear that PAC did not involve itself in or purport to accomplish the settling of “grievances,” nor did it attempt to resolve “labor disputes” with individual employees before the election in question. The ALJ conceded that PAC did not “deal with” wages or rates of pay. The ALJ apparently found that discussions with representatives at a March 11 meeting concerning personal/sick days and the attendance bonus program constituted dealing with employees over “hours of employment” or “conditions of work.” We must disagree. [FN170]
Although the Airstream PAC met for the first time after the United Auto Workers had petitioned the NLRB for a representation election, the court concluded that the company's president
did listen to employee complaints about Airstream rules, but this was no different from prior “rap sessions.” *108 Airstream took no action during the course of the Union campaign either at a PAC meeting or as an announced consequence of such a meeting that could reasonably be construed to involve hours of employment, conditions of work, or the settling or handling of grievances or employee disputes. The basic function continued to be a means of communication between management and employees. [FN171]
Thus, the Sixth Circuit held, “Under the statutory language as discussed in Cabot Carbon, we are not persuaded that substantial evidence supported the conclusion reached by the ALJ and the Board that the PAC was a labor organization ….” [FN172]
Airstream is one example of a case that “[has] focused on the question of whether ‘dealing’ has resulted in actual changes in the workplace.” [FN173] As such, it shades into the third prong of the test of whether an employee participation program is or is not a labor organization, i.e., “dealing” must concern grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. [FN174] “If such changes have not taken place, this is said to militate against labor organization status.” [FN175] Indeed, it may be fair to say that, although the courts and commentators talk of three factors informing their “labor organization” inquiry, number two (dealing) and number three (subject of dealing) have been collapsed for all practical purposes into a single factual inquiry. [FN176]
*109 In summary, it seems that an employee participation program may escape the stigma of “labor organization” if (1) it either has no power, serving only as a source of employee opinion, [FN177] or (2) exercises sufficient autonomy to convert all the members to managers under the NLRA. [FN178] However, in the broad middle ground between these two extremes, an employee participation program may well meet the NLRA's definition of “labor organization.” [FN179] In that case, it seems an easy analytic second step to determine that the employer dominates the organization.
The federal common law has developed five criteria, any of which, if met by the employer, will signify employer domination:
(1) Coming up with the idea for the committee or other organization. [FN180]
(2) Creating the program or other organization. [FN181]
(3) Developing the structure of the committee or other organization. [FN182]
(4) Drafting the bylaws or other governing guidelines of the committee or other organization. [FN183]
(5) Appointing the members of the committee or other organization. [FN184]
*110 An NLRB administrative law judge declared seven participative committees at DuPont's Chambers Works in Deepwater, New Jersey to be illegal employer-dominated labor organizations and ordered that they be disbanded. [FN185] In so holding, the ALJ found that “the company initiated all the committees, selected employees to participate on them, and provided meeting places, equipment, and supplies for them. The committees operated under guidelines which gave management members of the committees control over the subject matter of meeting and required that decisions be made by consensus.” [FN186]
Undoubtedly the DuPont decision is headed for NLRB review, where the case may be determined by the NLRB's decision in Electromation, Inc. [FN187] The NLRB has emphasized a prophylactic view, that is, Does the employer's conduct create the potential for domination? The courts, however, have leaned toward a results test, that is, Is there actual domination? [FN188] But in the words of one observer, “Even most business groups don't expect the NLRB to outlaw teams. Instead, it might suggest guidelines for when they're *111 O.K. Either way, the board's decision is likely to be appealed to the U.S. Supreme Court.” [FN189]
The prospect of employee participation programs being tested in the Supreme Court stimulates some interesting speculation. On one hand, a high court consisting of mostly conservative justices might be expected to approve of employee participation programs based upon a pro-business, anti-union philosophical orientation. [FN190] On the other hand, Justices Thomas and Scalia, in particular, may feel that the NLRA must be literally interpreted, leaving to Congress the decision whether to amend the Act to accommodate employee participation program. [FN191]

IV. OWNERSHIP INSTEAD OF EMPLOYMENT: A MODEST PROPOSAL

To recap — as sportscasters say — Part I of this Article argued that the unionization of big league athletes is an anomaly that ought to be eliminated as quickly and painlessly as possible. Part II suggested that employee ownership and participation programs present preferable options to the adversarial posture existing between management and “labor” in the major leagues of professional athletics.
The attentive reader will have realized that the unusual, if not to say unique, nature of big league sports clubs poses a significant impediment to implementation of our suggestion. That impediment is the relatively brief tenure of most professional players with the various teams. Even for that rare player who spends his entire career with a single team, that career ends when the player is “thirty-something,” or at most “forty-something,” unless he becomes a coach or commentator for the same team. [FN192] Given this *112 seemingly intractable circumstance, the reader may rightly inquire: Does employee ownership make any sense?
In a team that is a closely-held corporation, the answer most likely is “no.” But in a publicly-held entity, the departing player would be free to hold his shares or sell them on the market as he saw fit, making employee ownership seem far more sensible. Such circumstances are not without precedent. In Green Bay, Wisconsin, the NFL Packers are owned by their fans. The Packers are the only team in the NFL that is a publicly owned organization. There is no meddling team owner, no stadium dispute, no threat of leaving, no cries for more money, more luxury boxes, or more taxes. [FN193] Based on this evidence, this Article submits that every team in each of the “big four” professional sports leagues should be forced on the market for public sale.
Green Bay, Wisconsin is the nation's smallest professional sports market. The city has a population of about 96,000. [FN194] There are 1,898 Packers shareholders, each with a maximum of 200 shares. [FN195] The Packers, founded in 1919, have been publicly owned since 1922. [FN196] In 1950, the club was in financial difficulty and sold additional shares, thereby diluting the ownership even further. [FN197] As a result, the possibility of one person or group acquiring all the shares is remote. “We never have anyone who wants to sell their stock back,” the team's president has been quoted as asserting. [FN198]
Although commentators have observed that this public ownership has created an extremely favorable community of interest among fans, management, and players, [FN199] the anomaly survives only because it predates current NFL rules forbidding such *113 public ownership, ostensibly to avoid conflicts of interest. [FN200]
However, the spate of team relocations in the final days of 1995 — coming on the heels of the labor disputes that disrupted several sports — has led some important policy makers to question the current state of affairs in professional athletics. Witness the recent comments of Senator Patrick J. Leahy to the Senate Judiciary Committee:
Who could have imagined the Cleveland Browns abandoning the fans of Cleveland, who have been so supportive through its losing seasons as well as its championships? What we called franchise “removal” in the 80's when it involved the Oakland Raiders and the Philadelphia Eagles, has become so commonplace that it has been redesignated by the more neutral term “relocation” in the 90's.
The price for the artificially limited number of professional sports franchises is a diversion of public resources into the construction of new arenas and the spectacle of elected representatives having to outbid each other to obtain or maintain a team. If the public is going to help finance these teams, maybe the public should own them. [FN201]
Should the Congress act upon Senator Leahy's suggestion, the public ownership of professional teams would, as we have suggested, facilitate the ownership of some of that publicly-traded stock by the players.
In conclusion, this Article proposes the following reforms for big league professional sports teams:
(1) Eliminate labor unions and collective bargaining;
(2) Institute employee ownership and participation programs;
*114 (3) Publicly sell the stock of the teams.
In combination, these three reforms can create both the socio-cultural environment and the redistribution of wealth that ought to be, in fairness to the fans and the communities upon which these teams depend, the hallmarks of athletics at any level of play.
[FNd1]. Associate Professor of Law and Business, University of Orlando. B.A., 1969, Franklin and Marshall College; M.A., 1974, Kent State University; Ph.D., 1979, J.D., 1981, Case Western Reserve University.

[FNdd1]. B.A, 1990, Stockton State College; J.D., 1995, Widener University School of Law.
The authors wish to acknowledge the excellent assistance of Professor Castagnera's research assistant, Michael G. Hanson, a second year law student at Widener University School of Law, in the preparation of this Article.

[FN1]. See, e.g., Michael J. Cozzillio, I Ain't Gonna Work On Selig's Farm No More, WIDENER SCHOOL OF LAW MAGAZINE 2, Spring 1995, at 22 (discussing “this year's revolting baseball strike”).

[FN2]. See id. (describing baseball ownership as “industrial neofascism”).

[FN3]. 29 U.S.C. §§ 151-69 (1988).

[FN4]. 29 U.S.C.S. § 151 n.11 (Law. Co-op. 1994).
[I]t is the purpose of the [National Labor Relations Act], by protecting employees from employer interference, intimidation and coercion, to open the way for collective bargaining on a basis of equality of bargaining power between employers and freely chosen representatives of employees to the end that voluntary agreements between them as to wages, hours, and other conditions of employment will be reached and thus industrial strife and unrest will be reduced.
Id. (citing NLRB v. Newark Morning Ledger Co., 120 F.2d 262, 265 (3d Cir.1941)).

[FN5]. Id. § 151 n.13 (“The fundamental policy of the [National Labor Relations Act] is to safeguard rights of employees to self-organization and collective bargaining, but the Act does not confer rights upon applicants for employment, nor does it compel employment of anyone.”).

[FN6]. BARBARA W. TUCHMAN, THE PROUD TOWER: A PORTRAIT OF THE WORLD BEFORE THE WAR 1890-1914, 81-82 (1965).

[FN7]. James O. Castagnera, Millionaires' Strike Sounds Sour Note, PHILA. DAILY NEWS, Aug. 12, 1994, at 34.

[FN8]. See JAMES B. DWORKIN, OWNERS VERSUS PLAYERS, BASEBALL AND COLLECTIVE BARGAINING 1-5 (1981); PAUL D. STAUDOHAR, THE SPORTS INDUSTRY AND COLLECTIVE BARGAINING 1-21 (2d ed. 1989).

[FN9]. Id.

[FN10]. Id.

[FN11]. Id. Illustration: Player C plays for Team A. A has sole discretion and power in deciding where C plays. If A wants to do so, it can reserve the rights to C for the duration of C's career. If C refuses to play for A, C thereby loses the right to play anywhere in the National League.
This “reserve clause” was a standard contractual arrangement that gave each team the option to “keep” all of its players after their contracts had expired. Id.

[FN12]. See DWORKIN, supra note 8, at 8-12.

[FN13]. See DWORKIN, supra note 8, at 8-12.

[FN14]. See DWORKIN, supra note 8, at 8-12.

[FN15]. See DWORKIN, supra note 8, at 8-12.

[FN16]. In this sense, as in others, the professional athlete's relationship to the fan is analogous to the corporate executive's relationship to the average corporate employee. The income abyss separating the two has never been wider. After taxes, the CEO of a major American corporation takes home 70 times the annual income earned by the same company's average employee. ROBERT B. REICH, THE WORK OF NATIONS: PREPARING OURSELVES FOR 21ST CENTURY CAPITALISM 205 (1991). This compares to CEOs making only 12 times the aftertax income of rank-and-file workers in the unionized 1950s. Id. The top 5 percent of American families today enjoy 26 percent of the country's total income. Id. at 197. The top 19 percent of American families enjoy more than half of the country's total income. Gary B. Nash, The History Children Should Study, THE CHRONICLE OF HIGHER EDUCATION, Apr. 21, 1995, at A60. Average American income peaked in 1973 and in real dollars has declined ever since. RICHARD J. HERRNSTEIN CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE 516-17 (1994). With an income of around $37,000 per year, id., the average U.S. family would need to work a century to match the single-season income of a star earning $3.7 million.

[FN17]. PAUL C. WEILER & GARY L. ROBERTS, MATERIALS AND PROBLEMS ON SPORTS AND THE LAW 55 (1993).

[FN18]. See, e.g., Kenneth L. Shropshire, The Brave New World: Baseball in the Twenty-first Century, 13 ENT. & SPORTS LAW. 7 (1995) (discussing “educated guesses” based on history, past negotiations, and congressional debates regarding possible solutions to salary arbitration, free agency, and other concerns).

[FN19]. Claire Smith, Smaller May Be Better in Talks, N.Y. TIMES, Dec. 21, 1994, at B20. “[B]argaining required by the [National Labor Relations A]ct does not mean mere talk with the purpose of avoiding agreement, but a good faith effort to reach agreement about matters which are the proper subjects of bargaining ….” NLRB v. Darlington Veneer Co., 236 F.2d 85 (4th Cir.1956) (emphasis added).

[FN20]. Peter Schmuck, Players, Owners Both Seek Relief from NLRB, THE BALTIMORE SUN, Dec. 28, 1994, at 1C. “Under § 301 of the LMRA, 29 U.S.C. § 185(a) union members may bring an action in the federal district courts for breach of a collective bargaining agreement even where the conduct alleged was arguably protected or prohibited by the NLRA.” Moore v. General Motors Corp., 739 F.2d 311, 316 (8th Cir.1984).

[FN21]. See ROGER ANGELL, THE SUMMER GAME 6 (1972) (describing the preseason “Grapefruit League” as a time for teams to look “hopefully at their rookies and anxiously at their veteran stars”).

[FN22]. Weiler & Roberts, supra note 17, at 55.

[FN23]. Weiler & Roberts, supra note 17, at 55.

[FN24]. Joe LaPointe, N.H.L. Clubs Closer to Player Offer, N.Y. TIMES, Jan. 8, 1995, § 8, at 1.

[FN25]. Sandra McKee, On Deadline Eve, Goodenow and Bettman Talking, THE BALTIMORE SUN, Jan. 10, 1995, at 11C.

[FN26]. Id.

[FN27]. Richard Sendomir, The Players Approve Agreement with N.H.L., N.Y. TIMES, January 14, 1995, at 35.

[FN28]. NBA v. Williams, 857 F.Supp. 1069, 1072 (S.D.N.Y. 1994).

[FN29]. John Helyar, Power Plays: Pro Basketball Loses Its “Feel Good” Image in Nasty Labor Dispute, WALL. ST. J., Aug. 7, 1995, at A1 (explaining that the no-strike, no-lockout moratorium ensured a 1994-95 season, and that the NBA continued play “when baseball and hockey were shut down”).

[FN30]. Powell v. National Football League, 678 F.Supp. 777 and 690 F.Supp. 812 (D.Minn. 1988), aff'd, 930 F.2d 1293 (8th Cir.1989), cert. denied, 498 U.S. 1040 (1991); see infra notes 56-61 and accompanying text for a discussion of Powell.

[FN31]. For a discussion on salary caps in light of Powell, as applied to MLB and the NBA, see Mark T. Gould, Now Wait a Minute Casey, 13 ENT. & SPORTS LAW. 9-11 (1995).

[FN32]. Shropshire, supra note 18, at 7 (“If the player's associations in all the major American sports agree on one thing, it is the need to get out from under caps as soon as possible, and only agree to caps where management can show financial problems that threaten the existence of the leagues.”).

[FN33]. STAUDOHAR, supra note 8, at 36; see, e.g., Michael Juarez, Baseball's Antitrust Exemption, 17 HASTINGS COMM. & ENT. L.J. 737, 757 (1993) (“The Padres, in a blatant effort to cut their payroll from 29.2 million to under ten million, traded away the best and consequently the highest paid players on the team.”). But see Donald Fehr, All Compromise Came from the Players, 13 ENT. & SPORTS LAW. 1, 14 (1995) (discussing salary caps: “The CRS (Congressional Research Service) concluded there is ‘little evidence that free agency and market determined wages' have caused a ‘market failure’ in baseball …. [T]he CRS discovered that if the clubs' salary-cap proposal had been in effect in 1994, the result would have been to transfer approximately $198 million from the players to the owners.”).

[FN34]. 15 U.S.C. §§ 1-7 (1994).

[FN35]. 15 U.S.C. § 1 (1994).

[FN36]. 15 U.S.C. § 2 (1994).

[FN37]. WALTER T. CHAMPION, JR., FUNDAMENTALS OF SPORTS LAW 456-57 (1990) (asserting that the inherent nature of organized sports causes conflict with antitrust laws).

[FN38]. See, e.g., Flood v. Kuhn, 407 U.S. 258 (1972); Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953); Federal Baseball Club v. National League, 259 U.S. 200 (1922); Mackey v. National Football League, 543 F.2d 606 (8th Cir.1976).

[FN39]. 407 U.S. 258 (1972).

[FN40]. Id. at 264-65.

[FN41]. Id. at 273.

[FN42]. 259 U.S. 200 (1922).

[FN43]. 346 U.S. 356 (1953).

[FN44]. Flood, 407 U.S. at 282-85.

[FN45]. Id. at 276-82; see also Haywood v. National Basketball Ass'n, 401 U.S. 1204 (1971); Radovich v. National Football League, 352 U.S. 445 (1957); United States v. International Boxing Club, 348 U.S. 236 (1954); Deesen v. Professional Golfers' Ass'n of America (PGA), 358 F.2d 165 (9th Cir.1966); San Francisco Seals, Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D. Cal. 1974).

[FN46]. Flood, 407 U.S. at 282.
It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Courts' expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs.
Id.; see also Antitrust Measure for Baseball Is Cleared by Senate Committee, WALL ST. J., Aug. 4, 1995, at B2 (“Senate Judiciary Committee approved a bill that would partly repeal Major League Baseball's antitrust exemption, representing a possible beginning of the end of its 70-year-old special treatment.”).

[FN47]. Flood, 407 U.S. at 282-83.

[FN48]. 543 F.2d 606 (8th Cir.1976), cert. dismissed, 434 U.S. 801 (1977).

[FN49]. Id. at 614.

[FN50]. 675 F.Supp. 960 (D.N.J. 1987).

[FN51]. Id. at 961.

[FN52]. Id.

[FN53]. Id. at 965.

[FN54]. Id.

[FN55]. Id.

[FN56]. 678 F.Supp. 777 and 690 F.Supp. 812 (D.Minn. 1988), aff'd, 930 F.2d 1293 (8th Cir.1989), cert. denied, 498 U.S. 1040 (1991).

[FN57]. See McCourt v. California Sports, Inc., 600 F.2d 1193 (6th Cir.1979); Mackey v. National Football League, 543 F.2d 606 (8th Cir.1976), cert. dismissed, 434 U.S. 801 (1977); Robertson v. National Basketball Ass'n, 389 F.Supp. 867 (S.D.N.Y. 1975); Kapp v. National Football League, 390 F.Supp. 73 (N.D. Cal. 1974); Boston Professional Hockey Ass'n, Inc. v. Cheevers, 348 F.Supp. 261 (D.Mass. 1972).

[FN58]. Powell, 764 F.Supp. at 1356.

[FN59]. Id. at 1358.

[FN60]. Id. at 1359.

[FN61]. Id.

[FN62]. COX ET AL., LABOR LAW, CASES AND MATERIALS 272 (11th ed. 1991).

[FN63]. See Powell v. NFL, 764 F.Supp. 1351 (D.Minn. 1991).

[FN64]. STAUDOHAR, supra note 8, at 6-7.

[FN65]. STAUDOHAR, supra note 8, at 7.

[FN66]. STAUDOHAR, supra note 8, at 7.

[FN67]. See Juarez, supra note 33, at 745 n.55 (discussing the draft: “Players drafted from college develop their skills in the minor leagues, and some minor league players make it to the major leagues.”).

[FN68]. See Juarez, supra note 33, at 745-46.

[FN69]. See STAUDOHAR, supra note 8, at 14.

[FN70]. See STAUDOHAR, supra note 8, at 14.

[FN71]. See Juarez, supra note 33, at 746 (discussing some injustices caused by the reserve system).

[FN72]. See Juarez, supra note 33, at 746.

[FN73]. Castagnera, supra note 7.

[FN74]. This, of course, assumes that college athletes are first deemed to be employees, a proposition not lacking precedent. See Hill v. NCAA, 865 P.2d 633 (Cal. 1994) (comparing college athletes to employees in the realm of drug testing).

[FN75]. Joseph R. Blasi & Douglas L. Kruse, Strategic Problems and Tactical Promise: Unions and Employee Ownership, 42 LAB. L.J. 498, 499-500 (1991); see also JOSEPH R. BLASI & DOUGLAS L. KRUSE, THE NEW OWNERS: THE MASS EMERGENCE OF EMPLOYEE OWNERSHIP IN PUBLIC COMPANIES AND WHAT IT MEANS TO AMERICAN BUSINESS (1991).

[FN76]. PETER F. DRUCKER, THE NEW REALITIES 192 (1989).

[FN77]. See generally Banks & Metzgar, Participating in Management, 8 LAB. REL. REV. 2 (1989).

[FN78]. See generally AUREN URIS, 101 OF THE GREATEST IDEAS FOR MANAGEMENT 152-54 (1982) (discussing participant management).

[FN79]. See, e.g., James O. Castagnera, To Confront or Cooperate? The Lesson of Anthracite Coal, 41 LAB. L.J. 158, 158-64 (1990).

[FN80]. See supra notes 17-33 and accompanying text.

[FN81]. See generally ROSABETH MOSS KANTER, WHEN GIANTS LEARN TO DANCE 32-54 (1990) (discussing corporate structure change and Apple Computer and Kodak's successes).

[FN82]. Harold J. Datz, Employee Participation Programs: Are They Lawful Under the National Labor Relations Act?, 8 LAB. LAW. 81 (1992). It should be noted that Mr. Datz was chief counsel to NLRB member John N. Raudalbaugh at the time he wrote this article, and therefore a particularly well-qualified commentator on these issues.

[FN83]. JAMES O. CASTAGNERA & D. LITTEL, FEDERAL REGULATION OF EMPLOYEE BENEFITS §§ 5.7, 5.9, 5.14 (1992).

[FN84]. See infra Part III (discussing the short employment of professional athletes).

[FN85]. Ronald L. Ludwig, Basic ESOP Rules, ESOPs 1990, 9, 27-29 (1990).

[FN86]. See Castagnera, supra note 79, at 158-64; Owen E. Herrnstadt, Why Some Unions Hesitate to Participate in Labor-Management Cooperation Programs, 8 LAB. LAW. 71, 71-79 (1992).

[FN87]. 29 U.S.C. §§ 141-187 (1988 & Supp. III 1991); see also CASTAGNERA & LITTEL, supra note 83, §§ 5.11-5.13; Datz, supra note 82, at 81.

[FN88]. Ludwig, supra note 85, at 9 (“IRC § 4975 (e) (7), added as part of ERISA, defines ESOP as a stock bonus plan (alone or combined with a money purchase pension plan) which is “designed to invest primarily” in employee stock.”); see also infra notes 93-94 and accompanying text.

[FN89]. See ROBERT L. HEILBRONER, THE WORLDLY PHILOSOPHERS: THE LIVES, TIMES AND IDEAS OF THE GREAT ECONOMIC THINKERS, Ch. 5 (1986).

[FN90]. See supra notes 3-7 and accompanying text for a discussion regarding the development of unions.

[FN91]. See supra Part I.

[FN92]. See generally David Beard, Baseball and America Find Each Other Again, But Reunion is Uneasy, SUN-SENTINEL, Apr. 23, 1995, at 1A; Voices: Voice of the Fan Granting a Wish, SPORTING NEWS, Jan. 30, 1995, at 9.

[FN93]. Large Employee-Owned Firms Tell ESOP Success Stories, DAILY LAB. REP. (BNA), Apr. 24, 1990, at A2.

[FN94]. Id.

[FN95]. Russell B. Long, BUREAU OF NAT'L AFFAIRS (BNA), EMPLOYEE OWNERSHIP PLANS: HOW 8,000 COMPANIES AND 8,000,000 EMPLOYEES INVEST IN THEIR FUTURES, introduction, at v. (1987) [hereinafter EMPLOYEE OWNERSHIP PLANS].

[FN96]. Roger C. Siske, Employee Stock Ownership Plans, 1 ALI-ABA COURSE OF STUDY, ADVANCED LAW OF PENSIONS AND DEFERRED COMPENSATION 373 (1990).

[FN97]. Id.

[FN98]. Id.

[FN99]. Id.

[FN100]. EMPLOYEE OWNERSHIP PLANS, supra note 95, at 7.

[FN101]. Susan Warner, Acme Union to Join Bid For Stores, PHILA. INQUIRER (N.Y. Times Co., Abstracts), Mar. 29, 1991, at 9C; UFCW Members Approve Proposal for Employee Buyout of Acme Markets, DAILY LAB. REP. (BNA), Apr. 3, 1991, at A4. The union's bid was ultimately unsuccessful. Id.

[FN102]. HENRY H. PERRITT JR., EMPLOYEE BENEFITS CLAIMS LAW AND PRACTICE 45 (1990).

[FN103]. 29 U.S.C. § 1107(d)(6)(A) (Supp. III 1991); see also I.R.C. § 4975(e)(7), (1996) (“The term (employee stock ownership plan) means a defined contribution plan-(A) which is a stock bonus plan which is qualified, or a stock bonus and a money purchase plan both of which are qualified under section 401(a), and which are designed to invest primarily in qualifying employer securities.”).

[FN104]. I.R.C. § 401(a) (1996).

[FN105]. STEPHEN J. KRASS, THE PENSION ANSWER BOOK 24-1 (11th rev. ed. 1991).

[FN106]. Stock bonus plans have fewer legal requirements for tax qualifications than ESOPs. For example, stock bonus plans are not limited to investing primarily in the employing company's own stock. See EMPLOYEE OWNERSHIP PLANS, supra note 95, at 8.

[FN107]. See Avner Ben-Ner & Derek Jones, Employee Ownership: An Overview of Its Growing Incidence Around the World, 43 INDUS. REL. RES. ASS'N SERIES 374, 376 (J. Burton ed. 1990).

[FN108]. See Siske, supra note 96, at 375-77.

[FN109]. Treas. Reg. § 54.4975-11(a)(2) (1994).

[FN110]. 29 U.S.C. § 1103(a) (1988 & Supp. III 1991). The concept of a trust is neither new to the law nor unique to ERISA; the Restatement of Trusts defines a trust as “a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.” RESTATEMENT (SECOND) OF TRUSTS § 2 (1959).

[FN111]. 29 U.S.C. § 1103(a) (1988 & Supp. III 1991). According to the Restatement of Trusts, “The person holding property in trust is the trustee.” RESTATEMENT (SECOND) OF TRUSTS § 3(3) (1959).

[FN112]. 29 U.S.C. § 1103(a) (1988 & Supp. III 1991).

[FN113]. The definition of a fiduciary under ERISA is very broad; it includes any person who (i) “exercises any discretionary authority or discretionary control” with respect to the management of the plan or exercises “any authority or control,” whether discretionary or not concerning its assets; (ii) renders any investment advice concerning plan assets for which he receives direct or indirect compensation; or (iii) “has any discretionary authority or discretionary responsibility” for the administration of the plan. 29 U.S.C. § 1002(21) (1988). This definition would ordinarily include the trustees, all individuals having discretionary authority in the plan's administration, members of the plan's investment committee, and investment advisors (whether formal or informal) who receive direct or indirect compensation for their advice. See 29 C.F.R. §§ 2509.75-8, 2510.3-21(c) (1995).

[FN114]. 29 U.S.C. § 1104 (1988 & Supp. III 1991) (fiduciary duties).

[FN115]. Id. §§ 1103(a)(2), 1105(c)(1).

[FN116]. See Whitefield v. Cohen, 682 F.Supp. 188 (S.D.N.Y. 1988); cf. Donovan v. Mazzola, 716 F.2d 1226 (9th Cir.1984) (trustees breached fiduciary duty by employing unqualified consultants).

[FN117]. This might also cost a standard stock bonus plan its tax qualification. Ludwig, supra note 85, at 13 (“Existing qualified employee plans may be “converted” into ESOPs, subject to possible acceleration of vesting and maintenance of certain benefit distribution options. Investment of existing plan assets in employer stock raises concerns under ERISA Fiduciary rules.”).

[FN118]. 29 U.S.C. § 1107(a)(1)-(3) (1988).

[FN119]. I.R.C. § 401(a) (1996).

[FN120]. 29 U.S.C. §§ 1107(b)(1), (d)(3) (1988).

[FN121]. See CASTAGNERA & LITTEL, supra note 83, § 5.5.

[FN122]. Cf. Fehr, supra note 33. See generally CASTAGNERA & LITTEL, supra note 83, § 5.11.

[FN123]. But see supra notes 56-61 and accompanying text.

[FN124]. 110 N.L.R.B. 356 (1954), enforced, 231 F.2d 717 (D.C. Cir.1955), cert. denied, 351 U.S. 909 (1956).

[FN125]. Id. at 358.

[FN126]. 231 F.2d at 722.

[FN127]. 110 N.L.R.B. at 363 (emphasis added).

[FN128]. 231 F.2d at 722-23.

[FN129]. 110 N.L.R.B. at 362.

[FN130]. Arguments similar to those of Richfield Oil were raised when Douglas Fraser, then president of the United Auto Workers, was elected to the board of directors of Chrysler Corporation in 1980. See Scott, Union Directors and Fiduciary Duties under State Corporate Law, in LABOR LAW AND BUSINESS CHANGE 115-37 (S. Estreicher & D. Collins eds., 1988).

[FN131]. C. MORRIS, THE DEVELOPING LABOR LAW 788 (1983).

[FN132]. 234 N.L.R.B. 72 (1978).

[FN133]. Id. at 76.

[FN134]. Id.; see also EMPLOYEE OWNERSHIP PLANS, supra note 95, at 9.

[FN135]. Aaron Bernstein, Putting a Damper on That Old Team Spirit, BUS. WK., May 4, 1992, at 60.

[FN136]. Id.; see also Ben-Ner & Jones, supra note 107, at 375 (“[E]mployees are required to participate in certain activities (traditionally, product quality control) in addition to their production functions.”). Joint consultation committees are another variant on the model.

[FN137]. See Tom Hartley, Commitment, Not Lip Service, Makes Quality Programs Work, BUS. FIRST-BUFF., Oct. 21, 1991, at 1 (case study).

[FN138]. Bernstein, supra note 135, at 60.

[FN139]. See Ben-Ner & Jones, supra note 107, at 376. The interaction of rank and file with management and the assumption of managerial duties by “mixed” teams figure in the debate on the legality of teams in unionized plants. See CASTAGNERA & LITTEL, supra note 83, §§ 5.11-5.15.

[FN140]. See Ben-Ner & Jones, supra note 107, at 376. The comment infra at note 146 would appear to apply with special force to the “work council” concept.

[FN141]. See Ben-Ner & Jones, supra note 107, at 376.

[FN142]. Even where there has been broad-based employee ownership, broad-based employee control does not necessarily follow. See CASTAGNERA & LITTEL, supra note 83, § 5.15. But see Ben-Ner & Jones, supra note 107, at 376 (“Many employee ownership schemes combine employee participation in both returns and control; such combinations represent greater employee ownership rights than one or the other above.”).

[FN143]. URIS, supra note 78, at 223 (management is preoccupied by increased productivity).

[FN144]. Paul D. Sweeney et al., Employee Participation and Mental Health: A Test of a Mediational Model, 43 INDUS. REL. RES. ASS'N SERIES 390 (J. Burton ed., 1990) (citations omitted).

[FN145]. Kesegich, A Different Kind of Company President, CASE W. RES. U. MAG., Aug. 1991, at 27.

[FN146]. Such plans may, if improperly administered, violate federal and state wage and hour laws. See Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1988 & Supp.1995), particularly sections 213(a) and (b) (minimum wage and maximum hour requirements); 29 C.F.R. pt. 548 (1995) (computing overtime pay); Bureau Nat'l Affairs (BNA), WAGE AND HOUR MANUAL 94: 701 (effect of profit sharing plans on overtime pay); Wage & Hour Admin. Op. WH-178 (1972) (percentage of total earnings as bonus); Wage & Hour Admin. Op. WH-142 (1971) (work at different pay rates couples with bonus).

[FN147]. 309 N.L.R.B. 990 (1990), enforced by 35 F.3d 1148 (7th Cir.1994).

[FN148]. Bernstein, supra note 135, at 60.

[FN149]. Bernstein, supra note 135, at 60.

[FN150]. 29 U.S.C. § 158(a)(2) (1988).

[FN151]. DAILY LAB. REP. (BNA), July 1, 1991, at A16.

[FN152]. 29 U.S.C. § 152(5) (1988).

[FN153]. Bernstein, supra note 135, at 60.

[FN154]. 78 CONG. REC. 3443 (1935).

[FN155]. Datz, supra note 82, at 82.

[FN156]. Datz, supra note 82, at 82.

[FN157]. 29 U.S.C. § 152(3) (1988).

[FN158]. See supra note 139 and accompanying text (describing the self-managed team).

[FN159]. Under the NLRA a “supervisor” is one who has the authority to do at least one of the following on behalf of the employer: “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward,” discipline, or direct other employees, or adjust their grievances, or “effectively to recommend such action.” 29 U.S.C. § 152(11) (1988); see, e.g., NLRB v. Yeshiva Univ., 444 U.S. 672, 676 (1980) (finding that college faculty members “effectively determine [the school's] curriculum, grading system, admission and matriculation standards, academic calendars and course schedules” and thus were members of management outside the jurisdiction of the NLRA).

[FN160]. Bernstein, supra note 135, at 60.

[FN161]. Datz, supra note 82, at 83.

[FN162]. Datz, supra note 82, at 83.

[FN163]. 360 U.S. 203 (1959).

[FN164]. Id. at 205-06 (quoting company manual).

[FN165]. Id. at 210.

[FN166]. Id. at 211 (citations omitted).

[FN167]. Datz, supra note 82, at 83.

[FN168]. Datz, supra note 82, at 83.

[FN169]. 877 F.2d 1291 (6th Cir.1989).

[FN170]. Id. at 1294-96.

[FN171]. Id. at 1296.

[FN172]. Id. at 1297. See supra notes 163-66 and accompanying text for a discussion of Cabot Carbon.

[FN173]. Datz, supra note 82, at 83 (1992).

[FN174]. Datz, supra note 82, at 82; see also supra note 156 and accompanying text.

[FN175]. 877 F.2d at 82.

[FN176]. See NLRB v. Cabot Carbon Co., 360 U.S. 203, 211; Airstream, Inc. v. NLRB, 877 F.2d 1291, 1295-96; see also Sprank's Nugget, Inc., 230 N.L.R.B. 275, 276 (1977) (employee committee could hear and resolve grievances without approval of employer, and therefore element of “dealing” was missing), enforcement granted in part and denied in part sub nom. NLRB v. Silver Sands Casino, 623 F.2d 571 (9th Cir.1980), cert. denied, 451 U.S. 906 (1981); NLRB v. Streamway Div. of Scott & Fetzer Co., 691 F.2d 288, 292 (6th Cir.1982) (as in Airstream, program's purpose was held to be purely informational). But see Lawson Co. v. NLRB, 753 F.2d 471, 477 (6th Cir.1985) (when company set up employee committee for first time at height of union organizing drive, court agreed with NLRB that this was unfair labor practice).

[FN177]. See Bernstein, supra note 135, at 60.

[FN178]. See Bernstein, supra note 135, at 60 (“Having management on both sides is what the law is designed to prevent.”).

[FN179]. See Bernstein, supra note 135, at 60 (Sixth Circuit cases suggest “that the NLRB would only come down on companies that set up teams mainly to manipulate employees or oppose a union.”).

[FN180]. Datz, supra note 82, at 84; see also Utrad Corp. v. NLRB, 454 F.2d 520, 521 (7th Cir.1971).

[FN181]. Datz, supra note 82, at 84; see also 454 F.2d at 521.

[FN182]. Datz, supra note 82, at 84; see also 454 F.2d at 522-23.

[FN183]. Datz, supra note 82, at 82 (citing, inter alia, North Am. Van Lines, Inc., 288 N.L.R.B. 38 (1988)).

[FN184]. Datz, supra note 82, at 82.

[FN185]. E.I. DuPont DeNemours & Co. v. Chemical Workers Ass'n Inc., 311 N.L.R.B. 893 (1993).
Having found (1) an agency relationship existing between the employee committee members and the bargaining unit employees they represent and (2) persuasive evidence that the employee members and the employee representation committees “deal with” the Company concerning safety, benefits, and fitness facilities, which concern working conditions as well as being mandatory subjects of bargaining, I find that the committees are labor organizations within the statutory definition.
Id.

[FN186]. Id.; see also DuPont Employee Committees Violate Labor Law, ALJ Finds, DAILY LAB. REP. (BNA), May 20, 1992, at 1-2 and A-3.

[FN187]. See supra notes 147-51 for a discussion of Electromation.

[FN188]. Datz, supra note 82, at 82 (citing, inter alia, Chicago Rawhide Mfg. Co. v. NLRB, 221 F.2d 165 (7th Cir.1995) (employer assistance program legal under court's subjective test for actual, rather than potential, domination) and Hertzka & Knowles v. NLRB, 503 F.2d 256, 630 (9th Cir.1974) (quoting Senator Wagner's observation that a sham or dummy union is one which “is dominated by the employer, which is supported by the employer, which cannot change its rules and regulations without his consent, and which cannot live except by the grace of the employer's whims.”)).

[FN189]. Bernstein, supra note 135, at 60.

[FN190]. See, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).

[FN191]. Cf. id.; see also James O. Castagnera & Thomas J. Bender, Justice Thomas and NLRB Refine Unions' Rights to Organize and Picket, EMPLOYMENT L. UPDATE, Apr. 1992, at 1.

[FN192]. DAVID QUENTIN VOIGT, AMERICAN BASEBALL 217 (1983) (only a few of the new breed of ballplayers made it past age forty).

[FN193]. Tim Green, Commentator Picks Green Bay over San Francisco 49ers, MORNING EDITION (National Public Radio, 6:00 am ET, Jan. 5, 1996).

[FN194]. David Nielsen, Packer Envy: Green Bay Fans Don't Have to Worry About Their Team Moving — They Own It, WASHINGTON TIMES, Dec. 20, 1995, at B1.

[FN195]. Id.

[FN196]. Id.

[FN197]. Id.

[FN198]. Id.

[FN199]. Id.; see also Green, supra note 193.

[FN200]. Nielsen, supra note 194, at B1.

[FN201]. Testimony November 29, 1995, Patrick J. Leahy, Senator, Senate Judiciary Antitrust, Monopolies and Business Rights, Sport Franchise Relocation, FDCH Congressional Testimony.




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