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[MUSIC PLAYING] SPEAKER: That national anthem comes to you on a brilliant, bright sunny day from Metropolitan Stadium in Bloomington, Minnesota.

BOB POTTER: Today, Minnesota Public Radio presents the fifth in its series of broadcasts on the role of the courts in a changing society. These programs are produced by MPR with the financial assistance of the Minnesota State Bar Foundation and the Nash Foundation. Today, we enter the world of professional football in order to look at a few aspects of our nation's antitrust laws. We'll see how in the last few years the antitrust laws combined with labor law and labor strife to drastically alter procedures, rules, and working conditions for players in the National Football League.

SPEAKER: There's a kick by Jones, end over end. He didn't try to hit it too deep. Taken by white at the 15 and he is knocked over by Vince Papale who got down there very quickly.

BOB POTTER: Professional football is America's number one spectator sport. And in the last decade, Americans have viewed unprecedented turmoil and change in their favorite sport. In addition to the more predictable things like rushing records, kicking records, and attendance records, there's been almost as much conflict off the field as on.

SPEAKER: Rich McGeorge jumps over from his tight-end position on the left shifting to the right side.

BOB POTTER: We've seen the merger of the American Football League with the National Football League and attempts to start a world football league and universal football league. We've seen charges of illegal gambling, which almost caused Joe Namath to leave the sport and which forced many team owners to take lie detector tests. There have been charges of drug trafficking among players and estimates that as many as one third of the players at one time took amphetamines.

There have been legal actions and federal pricing commission investigations into ticket prices. There have been lawsuits and congressional actions over TV blackouts of home games and television broadcast contracts worth $200 million. We've seen years of disagreement over artificial turf and years more over stadium facilities, to say nothing of the fact that we've watched Minnesota lose the Super Bowl four times.

SPEAKER: Second and about nine to go. Torkelson again get nowhere. Stopped right behind the--

BOB POTTER: But none of these events have had as much effect on the game as the conflict in the last decade between the players and the team owners. It is part of that conflict, which provides the focus of this program. And one of the central figures in that conflict is one of the greatest defensive players in the history of the game, the only interior lineman to win the NFL Most Valuable Player award, Minnesota's Alan Page.

ALAN PAGE: I suppose it all started for me in, I don't know. When I first signed my first contract, I came to training camp. They had every-- at that time they had everybody sign a release for licensing programs.

And they said, here, you got to sign it. And it wasn't like, take a look at it and see what it is. And if you want to sign it, sign it. It's you have to sign it if you want to-- if you don't want to create a lot of problems for yourself.

BOB POTTER: In 1968, the long-dormant National Football League Players Association became a union, the officially recognized bargaining agent for professional football players. Soon afterwards, the men and the players' association did begin to create a lot of problems for themselves. Players believed that for too many years, the team owners had manipulated them and treated them as little more than cattle. Among other things, they began to complain about petty, unnecessary rules.

ALAN PAGE: I mean they'd say, well, you can't have players wearing beards. You can't have players-- I mean bizarre things. You can't have players walking around in training camp in sandals without socks on.

That's the kind of stuff that went on. It was just really strange. It was really strange.

BOB POTTER: But there were other more substantive issues as well.

ALAN PAGE: Option clause, standard player contract, neutral arbitration, that sort of thing. As an example, the standard player contract binds you to your team forever until they want to let you go.

BOB POTTER: Page became the Vikings player representative in 1970. At that time, Jim Finks was the general manager of the Minnesota Vikings and was part of the negotiating team for the other side, the owners management council.

JIM FINKS: And we met long and often with the players association and affected an agreement, which ran from the, I believe, 1970 season through the 1973 season. And then I was again retained to be a member of the negotiating committee for negotiations with their committee commencing, I guess, in the spring of 1974. And then after a series of real severe problems, strikes, lockouts, an awful lot of dialogue, we did affect an agreement last spring.

BOB POTTER: Although the two sides finally reached agreement last spring, their relationship for several years was highlighted more by strikes and lockouts than by dialogue. There were walk outs and a brief strike in 1968. In 1970, there was a strike and some lockouts over pension and grievance procedures. And a federal grand jury began looking into claims that players were blackballed for unpopular actions.

In 1972, the National Labor Relations Board began investigating complaints that the National Football League owners were not bargaining in good faith. In 1974, there was a bitter 42-day strike in which the players were soundly beaten. In 1975, another strike fizzled. Meanwhile, the players association was weakening and leaders such as Bill Curry, Kermit Alexander, Tom Keating, and Ken Reeves were getting waived, traded, and cut.

SPEAKER: I-formation, McClanahan and Foreman the deep man. And the fake to Chuck Foreman. Bootlegging to the right is Fran. And Fran was dumped by Bergey who blitzed on the play and had a hold of his left arm as he threw the ball.

BOB POTTER: The early 1970s were unpleasant times for the players association.

ALAN PAGE: We presented those demands and they took them and said they'd get back to us. And the meetings lasted about an hour, hour and a half, something like that. That went on for the better part of two years, meeting with them and nothing was resolved.

BOB POTTER: Early on, individual players and their association realized that mere negotiation with the owners would get them nowhere. Although the players had the support of the public, the owners had the money and the power. And they would not budge an inch. So many players both individually and collectively began lawsuits in the courts to seek redress of their grievances.

SPEAKER: They're down. Lot formation left. Smith the lone running back. He's going out to catch a pass. Mullaney on the right flags all over the place.

SPEAKER: Offensive holding number 73.

[LOUD BANGS]

SPEAKER: First and 20.

BOB POTTER: Hear ye. Hear ye. The United States District Court for the District of Minnesota is now in session. Judge Earl Larson presiding. On today's docket, the case of Mackey versus the National Football League. Please be attentive and conduct yourself with proper respect for the law.

It was in 1599 that the legendary jurist Sir Edward Coke established the principle that monopolies were forbidden by the common law of the land. Little did Lord Coke realize at the time that his sentiments would influence the course of modern-day professional football. It was almost three centuries after Coke's era that a strong anti-monopoly or antitrust sentiment blossomed anew in the United States.

That sentiment arose in the Great Plains with the farmers Grange organization. And it spread quickly as the rise of industrial capitalism brought about huge, unpopular concentrations of economic power, concentrations like the Standard Oil trust, the steel trust, and the whiskey trust. Public scorn was so strong that in 1890, a conservative Congress was pressured to pass the Sherman Antitrust Act. That act has a history of weak and erratic enforcement. In fact, the courts originally applied the act's restrictions much more against labor unions than against business combinations.

Congress tried to stop that tendency with the Clayton Act in 1914, but the courts continued to use antitrust legislation more against labor than against business. That continued until more sweeping social legislation was passed during the Great Depression. Those laws exempting labor organization from the effects of the antitrust laws were to be applied in the case of Mackey versus the National Football League.

[WHISTLES]

SPEAKER: Straight ahead is Chuck Foreman, number 44. With the Vikings trailing 7 to 0 and we still have 13 minutes remaining here in the first period. A gain of 5, it'll be--

BOB POTTER: Also to be applied in the Mackey case were the more paramount issues of antitrust law. Antitrust law is supposed to encourage business competition and discourage monopolistic concentrations of capital. To that end, certain business practices are forbidden. These include practices like price fixing, division of markets among competitors, predatory price cutting, group boycotts, certain interlocking corporate directorships, unnecessary industry concentration, and the use of trade associations to encourage cooperation among competitors.

Now, the National Football League is really a trade association composed of the owners of the 26 NFL teams. It is that trade association which pays NFL Commissioner Pete Rozelle, which establishes the rules of the game, which arranges the big money television contracts and which negotiates with the football players trade union, the National Football League Players Association. And it was the power of this NFL Owners' Association, which was vigorously attacked by labor organizing and litigation in the last 10 years.

SPEAKER: So it is first down again the pitch to Foreman. Stopped behind the line of scrimmage. Good coverage, lateral pursuit--

BOB POTTER: In this program, we'll scrutinize two aspects of the decision in Mackey versus the NFL. First, how the courts balanced conflicting provisions of labor and antitrust laws and second, how the courts apply different antitrust criteria in different business situations. Curiously, for many years, professional sports had enjoyed an immunity from antitrust laws. In 1922, Supreme Court Justice Oliver Wendell Holmes wrote a long-standing decision saying that organized baseball was a sport not a business. And that such a wonderful national pastime should not be constrained by antitrust laws, which were more properly applied to businesses like Standard Oil, Alcoa, and DuPont.

In 1957, the Supreme Court distinguished football from baseball in this regard, saying that even though baseball was exempt from the antitrust law, football was not. But it was some time before any real effort was made to define just how antitrust laws should be applied to pro football. That effort occurred in the 1970s when several lawsuits were brought by players alleging antitrust violations by the owners. Perhaps the most significant of those suits was Mackey versus the National Football League.

ALAN PAGE: The people in charge of the association at that time, John Mackey, who was the president, Ed Garvey, who was the executive director, and the executive committee of the association at that time decided that they should institute a lawsuit against the Rozelle Rule. They considered whether they should go after the standard player contract, the option clause, or whatever. And they thought their best opportunity was against just limiting it to the Rozelle Rule in and of itself.

BOB POTTER: In May of 1972, John Mackey, Alan Page, John Henderson, Gene Washington, Nate Wright, and 27 other NFL players filed suit in the federal district court of Minnesota. They alleged that the NFL's option compensation rule, more commonly called the Rozelle Rule, so strongly tied players to one team that the rule, in effect, constituted a group boycott of player movement and a concerted refusal to deal with players by club owners. This, the players said, was a violation of the antitrust law.

SPEAKER: Personal foul, roughing a passer, number 78, defense.

BOB POTTER: The Rozelle Rule controlled a player who wanted to work for another team. Every player's contract said that when the contract expired, the team had an option to keep him for one more year at 90% of his previous year's salary. After that option year, the player was a free agent and could sign with another team. However, NFL rules provide that the player's old team deserves compensation for him from the new team. At that time, this compensation could be in the form of money, or other players, or draft choices or some combination.

If the two teams could not agree on compensation, then the rule provided that the NFL commissioner should decide what the new team must pay the old team for the moving player. Pete Rozelle has been NFL commissioner since before the rule was adopted. Therefore, it had always been Rozelle who made option compensation awards and so the rule carried his name.

Rozelle refused to be interviewed for this program. Ed Garvey is a former Minneapolis attorney who is now the director of the NFL Players Association. He briefly explains the history of this option compensation or Rozelle Rule.

ED GARVEY: In 1962, the Baltimore Colts signed RC Owens to a contract. He had played out the option in San Francisco. And up until that time, the NFL, through its commissioner, had said that the NFL was different than baseball. In football, it was said you could play out the option, become a free agent, and sign with any team in the league.

Well, it wasn't really true. There was an unwritten agreement not to sign anyone. But the Colts violated that unwritten agreement and signed RC Owens to a contract. Shortly thereafter, the league met and decided that they should have a compensation clause so that any team signing a veteran, a free agent would have to compensate the former team. And that later became known as the Rozelle Rule.

It was not applied really until 1967 when Dave Parks played out the option with San Francisco and signed with the New Orleans Saints. At that point, the two teams could not agree on any compensation. And the commissioner named Kevin Hardy, who was the Saints' first-round draft choice that year, and the next year's first round draft choice as compensation. That was such a stiff penalty to New Orleans that it really was a warning to other teams not to sign any player who became a free agent because of that fear of the unknown compensation that would be named by the commissioner. So as a result, very few players could play out the option and actually move from team to team.

BOB POTTER: The Players Association decided to challenge the Rozelle Rule in court as a violation of antitrust law. The defendants in the suit were the NFL, Commissioner Rozelle, and each team. The court had to balance competing provisions of antitrust and labor law. Antitrust law could be seen as forbidding the teams from getting together to prevent the players from changing teams, but recall that 1930 reforms in the labor laws excluded collective bargaining terms from antitrust actions.

The defendants argued that the Rozelle Rule was part of the collective bargaining agreement reached in 1970 and therefore was excluded from antitrust law. The NFL also claimed that even though the rule did limit player mobility, the nature of the football industry required competitive balance. And so the rule was reasonable, and necessary, and therefore not forbidden by antitrust law.

The players disagreed. They said collective bargaining agreements were made exempt from antitrust action to help preserve the victories of labor. They said the Rozelle Rule was included in the 1970 agreement only because the union was not strong enough to have it dropped. Therefore, they claimed, the rule was not a concession won at the demand of labor and so it did not qualify for the labor exemption.

The case was tried by Judge Earl Larson in Minneapolis. He decided in favor of the plaintiffs, the players. Upon appeal by the defendants, the Eighth Circuit court of Appeals disagreed with important legal conclusions made by Judge Larson. Nevertheless, it did uphold the effect of his decision.

We'll show you here how that happened. Attorney John French represented Pete Rozelle and the NFL. He outlines how Judge Larson and the appeals court disagreed over the balance between antitrust law and labor law.

JOHN FRENCH: You have a fundamental threshold question and that is, do the antitrust laws take hold first and then are they influenced by the labor laws? Or in this particular context, which is strictly a relationship between employer and employee, do the labor laws take hold first and the antitrust laws only apply to the extent that the labor laws don't? Judge Larson saw it the former way. He said this is illegal per se and therefore cannot be a proper subject of collective bargaining.

The Court of Appeals for the Eighth Circuit turned it around and said, no, we know that many things done by labor unions in conjunction with employers as a result of bargaining would be illegal per se if there weren't any labor laws. So we can't approach it that way. We have to say the labor laws provide the governing policy here. And if it is a mandatory subject of collective bargaining within the scope of the labor laws, then the existence of the antitrust laws cannot be permitted to strike down the results of the bargain.

BOB POTTER: As you heard, Judge Larson and the appeals court took exactly opposite approaches to the question. Judge Larson said, in effect, that the labor law could not be used as an excuse for a violation of antitrust law. And the appeals court said that the terms of a labor contract could not be declared an antitrust violation unless they were outside the protections of labor law.

Appeals courts have the power to overrule lower court judges on matters of law. And if Judge Larson had simply written his legal conclusions, the case probably would have been sent back for retrial. But appeals courts rarely disturbed factual determinations made by lower courts and Judge Larson had taken extensive testimony on the labor issue allowing him to include important findings of fact in his decision. The appeals court then took the facts uncovered by Judge Larson and plugged them into its own legal theories.

The appeals court said that a labor agreement is exempt from antitrust laws if three conditions exist. First, that it affects only the parties to the contract, second, that it concerns a mandatory subject of collective bargaining, and third, that it is the result of bona fide or good faith arms-length negotiations. There was little argument over the first two criteria. So the question was whether inclusion of the Rozelle Rule in the 1970 agreement was the result of good faith give and take between the players and the teams. Ed Garvey, director of the Players Association outlined the plaintiff's position.

ED GARVEY: We felt that the labor exemption only applies if labor agrees as a result of good faith bargaining to a particular restriction and that that restriction is in the best interests of the majority of the people in that bargaining unit. We did not feel that the labor exemption applies where something is created by management, forced upon the employees, and then they turn around and say, well, it's a mandatory subject of bargaining so therefore, it should be exempt from the antitrust laws. We never accepted that, still don't.

BOB POTTER: The district court made findings of fact, which partly agreed with the position of the players. Judge Larson found that since its inception, the union had been far too weak in relation to the clubs to obtain even a reasonable modification of the rule. The court found that in the little collective bargaining, which had occurred between the parties, there had never been any trade off or quid pro quo whereby the union agreed to the Rozelle Rule in return for other benefits. And therefore, the judge said the rule had never been the subject of serious arms-length collective bargaining.

In effect, what Judge Larson did in his decision was first determine that, as a matter of law, the labor exemption issue did not apply in the case. Then he hedged his bets. He went on to make factual findings, concluding that even if the issue were relevant, the Rozelle Rule really had not been a subject of bargaining anyway. So even though the appeals court disagreed with Larson's legal analysis, it did agree with his conclusion based on these later factual findings.

SPEAKER: Vikes are going for it on fourth and 2. Tarkenton loops it out and what a catch by Foreman. First down Vikings inside the 30. And Foreman saved Francis there because--

BOB POTTER: For very different reasons, both Judge Larson and the Eighth Circuit judges concluded that, in the case of Mackey versus the NFL, the Rozelle Rule was not excluded from antitrust scrutiny because of the labor exemption principle. That leads to the second and major issue in this litigation. Was the Rozelle Rule or the option compensation rule in violation of the antitrust law?

SPEAKER: 183.

SPEAKER: Number 77, McNeill is out and they've got an extra lineman in here in the [INAUDIBLE] Can they get him? Flag is down. The flag is down.

Eller got Dickey for about a 7-yard loss. Dickey wanted to throw that ball on short yardage. Here's the call from referee Chuck Heberling.

CHUCK HEBERLING: Defensive holding number 23 first down.

BOB POTTER: All clubs in the NFL are required to subscribe to the NFL constitutions and bylaws. Until recently, those bylaws automatically subjected the clubs to the Rozelle Rule. The players were arguing in court that this unanimous adherence to a rule strongly discouraging player mobility amounted to a group boycott and a concerted refusal to deal by the owners.

Without burdening you with the technical definitions of those terms, what they boiled down to in this case was whether the Rozelle Rule was really just a form of conspiracy by the owners designed to help them get monopoly type power over their players services. Now, the antitrust laws are primarily designed to prevent monopolization of product markets, that is to encourage competition for goods like soybeans, steel, bicycles, and so forth. So one of the first things that plaintiffs had to do was to establish that a player's services were part of a product market, which could be monopolized every bit as much as the petroleum market, for example. Judge Larson found that the players were a product for antitrust purposes.

SPEAKER: First down and then some. Close to the 45 yard line of Green Bay and he gets a hand from the partisan crowd as the Vikings have now moved into Green Bay territory.

BOB POTTER: Next, the plaintiffs had to prove that the Rozelle Rule inhibited free competition for this product. Proof of that provided some of the more colorful testimony in the trial.

ALAN PAGE: Mostly it was players that had played out their option or the club's option, I should say. You always remember that it's not the player's option. It's the club's option. And had tried to go elsewhere and had difficulties.

BOB POTTER: We talked with one of those witnesses, John Henderson. While Henderson was not a superstar like Alan Page, he was nevertheless a very good wide receiver. He played three years with Detroit then came to the Minnesota Vikings. As he testified at the trial, it was at Minnesota that he experienced personal difficulties because of the Rozelle Rule.

JOHN HENDERSON: I played out my option after about two or three years with Minnesota and I felt that my contract was not necessarily compatible with my contribution to the team, nor compatible with other starting wide receivers in the National Football League. A great deal did not happen. It was more of an academic thing.

I sent letters out and really wanted to continue to play ball. But again, I wanted to play, hopefully, on terms that were more compatible with my thinking and it really didn't happen. I think there were a few phone calls involved and a couple of letters that I received, but I really didn't have much to do with it. When I played out my option, I believe I took a 10% cut in salary from the previous year. I obviously wasn't happy with the previous year's contract, but nevertheless I had to take a 10% cut as a sort of a leverage to discourage people from playing out their option, I suppose.

BOB POTTER: John Henderson never did get the 10% back. The year he played out his team's option was his last year of professional football.

JOHN HENDERSON: So I think the Rozelle Rule, to answer your question more directly, definitely impeded my ability to go to another team. It becomes particularly difficult for those ballplayers who don't have the national notoriety or the superstars. They don't get the support and they don't get a chance to say what they have to say to the press and really get any visibility.

They're just more or less relegated to the terms of a team. And if they don't sign with a team that they're supposedly under contract to, then they don't go anyplace. And that was the principle that I didn't really think much of.

SPEAKER: Up once, now he's in trouble. Gets it away, intended for Odom, and he just chucked that out of there. He had pressure from Alan Page, number 88.

ALAN PAGE: They dug up every contract that I'd had with the Minnesota Vikings. What they were-- I suppose what they were trying to do was discredit me. One of the years in one of the contracts, the taxable income, which was all the income I received from the Vikings, I think it was like $120,000, which is a lot of money. That included playoff money, and bonuses, and that sort of thing for my performance.

The contract itself was for 50, 55. And I suppose what they were trying to do was discredit my testimony by showing that I could or that I had earned $120,000 like I was going to earn that every year. The only thing I was assured of earning if I played, if I stayed healthy was whatever the base contract was. I guess my testimony basically was to the effect that the Rozelle Rule, it stifles movement not only from the standpoint of the people who have played out their option or the club's option, but from the standpoint of people who have never done it. Because I've never done it.

[PA ANNOUNCER]

SPEAKER: Odom [INAUDIBLE]

[CROWD CLAMORS]

That was Barty Smith stopped by Page and McNeill.

SPEAKER: Page and Studwell on the tackle.

SPEAKER: A big loss.

ALAN PAGE: See that the trial was so long. The trial was very long. It ran for 55 trial days. There were, I think, something like 11,000 pages of trial transcript and hundreds of exhibits, many, many witnesses.

BOB POTTER: In addition to player testimony, the plaintiffs introduced a lot of economic evidence in the form of graphs, and charts, and expert witnesses. The plaintiffs' information was sketchy since most clubs are privately owned and do not publicize profit and expense figures. So the plaintiffs used estimates based on data from the two publicly-held clubs, the Packers and the Patriots. They also had some information from the rest of the league and they extrapolated from attendance figures and the well-publicized television contracts.

In all, the players had a solid case that the Rozelle Rule discouraged one club from signing a player from another club. The defendants tried to downplay that effect. They indicated that a club was often willing to sign a player who had played out his option. Mike Lynn, the general manager of the Vikings, gives an example.

MIKE LYNN: Ron Jessie who had played out his option and in Detroit, we tried to sign. We tried to talk to-- we did talk to the Lions about compensation. We felt that their request was totally out of hand.

So we went after him with the idea of signing him. During the period of time that the Rozelle Rule or the option compensation rule was in effect, it didn't deter us one iota to going after that player and signing him. I mean, the players say that the so-called Rozelle Rule restricted a player's movement in the league and what I'm saying it really didn't.

I mean, there was a prime example, the only one that I was involved in prior to the Mackey case, where a player who played out his option became a free agent, was free to negotiate with 27 other clubs. He did negotiate with six or eight clubs at his choosing. I mean he was the one that selected the clubs in which to negotiate with. And we were one of them because we were a playoff team.

And we negotiated with him after we were unable to work out something with Detroit. And he subsequently signed with the Los Angeles Rams. And the Rams were-- Detroit was awarded their number one draft choice and Cullen Bryant, a running back who refused to go to Detroit and is now still the property of the Los Angeles Rams.

BOB POTTER: Lynn says that the Rozelle Rule did not hurt marginal players either.

MIKE LYNN: You're not competing for marginal players. You're competing for those players that are so good that they're going to help you win ballgames. Marginal players don't help you win ball games. So you can pick up marginal players every day of the week. So I think that they would have the same difficulty moving from one team to another with or without a Rozelle Rule.

BOB POTTER: But Judge Larson thought differently. He found that the Rozelle Rule substantially restricted players' freedom of movement, that it decreased a player's bargaining power in contract negotiations, that it denied a player the right to sell his services in a free and open market, and that it depressed player salaries. Consequently, he determined that the Rozelle Rule and related practices constituted a concerted refusal to deal and a group boycott on the part of the defendants. Now, normally, that finding all by itself would be sufficient to declare a violation of the antitrust laws. In the past, the Supreme Court has dealt with group boycotts and refusals to deal in situations concerning everything from dress manufacturers to the Associated Press.

In those cases, the court said that if the lower court finds, in fact, that there is such a boycott or refusal to deal, then the activity is per se illegal, that is the activity is automatically a violation of the antitrust laws. The courts don't even want to listen to excuses. But the defendants last line of defense was that this was the wrong antitrust data to apply, that this strict, automatic per se rule was inappropriate for dealing with an industry such as theirs where special circumstances require that there be some restriction of player movement in order to guarantee competitive balance between each club in the industry.

ALAN PAGE: Basically, under the Sherman Act and some of the other antitrust laws, when a practice is challenged as anticompetitive, there are two possible tests to be applied. First, the question may be asked, is this practice unlawful per se? That means, is the practice so anticompetitive that no justification may be offered for it? No matter what justification may be advanced, the court will still find it's illegal. That is a per se violation.

The classic example of that is price fixing. That is an agreement between two competitors to charge the same price to a customer in the steel industry or in any industry in which people are arms-length competitors. That's one kind of violation.

Now, there is another test and that test is whether or not the agreement or practice constitutes an unreasonable restraint of trade. In other words, there are a number of restraints, which are not so obviously bad as to be unlawful per se, but may be bad because they are deemed unreasonable. And here, both sides do get to put in evidence concerning the purpose and effects of the restraints. The plaintiff has to put in evidence to show that the defendants, in engaging these restraints, had some kind of anticompetitive purpose and/or that the effect is seriously adverse to the rights of people to bargain freely or has a serious adverse impact on prices or on the sources of goods, the amount of goods manufactured, and so forth. The defendants, on the other hand, also get to put in evidence to show the reasons for the restraint and to try to convince the court that under the circumstances, the restraint is reasonable and therefore lawful.

BOB POTTER: That's exactly what the defendants offered to prove in this case. Jim Finks testified to the special need of the football industry for restriction on player mobility.

JIM FINKS: We felt very strongly that we must have some order of control over players not to suppress the players, but to control players from playing with the Minnesota Vikings one year and then leaving en masse and being members of the Green Bay Packers the next year. We just felt that we had to have some restrictions that would assure competitive balance within our league. Well, let me give you an example.

The Minnesota Vikings' very famous front four comprised of Alan Page, at that time Gary Larsen, Jim Marshall and Carl Eller. Had they have all played out their options and jointly gone to the highest bidder, for example, the Chicago Bears, well, that would have meant that without a Rozelle Rule that the Chicago Bears all of a sudden would have ended up with the best defensive front four in professional football. And the Minnesota Vikings would be left without absolutely anything. They would have to replace those four people and they would be irreplaceable.

So that is why the Rozelle Rule came in being in the first place to assure clubs that if they did lose a player or players, that they would be compensated either in a draft choice or by a player of comparable ability. And this would-- many cases was left up to the commission. Not many, but in some cases.

BOB POTTER: Finks believes that mobility restrictions are less important for general managers. In 1974, he had his own money problems with the Vikings ownership. He wanted a cut of the take, the same ownership interest, which Norm Van Brocklin had had.

When that was refused, Minnesota lost its popular general manager to the Chicago Bears. Mike Lynn took Fink's place at Minnesota. Lynn argues that the absence of restrictions on player mobility would be disastrous for professional football, especially for pro football here in the frozen reaches of Minnesota.

MIKE LYNN: It's not only us but, say, I would put us in Green Bay and say Buffalo and the same-- and the same kind of snow belt. And as long as you're winning, and as long as you're going to championship games, and going to Super Bowl games, and you're going to have players that want to associate with a winner. But what happens-- you can't be on top forever. I mean there was a time when everything catches up to you. And operating without any modified option compensation clause would be a disaster for the non glamour cities like Minnesota Green Bay and Buffalo.

BOB POTTER: In other words, the defendants argue that even though the Rozelle Rule reduced competition for player services among clubs in the football industry, that restriction was necessary. They said that the football industry is much different from other industries. While Ford could get along very well, perhaps even better, without a strong General Motors, each football club needs strong competition to guarantee good teams and high attendance.

So to keep a good competitive balance between the clubs, player mobility must be restricted. This special circumstance of the football industry, they argued, necessitated the use of the rule of reason antitrust standard instead of the strict per se standard. And because of this special circumstance, restrictive activity which would be illegal in the auto industry was reasonable in pro football. In response, the plaintiffs argued that the Rozelle Rule really did not affect competitive balance and therefore should not be found to be reasonable. Alan Page repeats part of their argument.

ALAN PAGE: The problem is that the system, at least as I saw it, didn't work to create competitive balance. It kept the haves on top and kept the have-nots on the bottom. I mean, if you look back over the last five, six, seven years at the teams that have made it to the playoffs, and not only made it to the playoffs but made it further than that, I mean you see a lot of the same names.

After I don't know how many years, Green Bay and Cleveland started having their problems. But since they've been on the decline, the team that came in after them has been there all the time. So it doesn't-- the system that they've got doesn't create a rapid turnover in teams in the playoffs. It hasn't really created the competitive balance that they claim it seeks to accomplish.

BOB POTTER: Attorney Ed Glennon recalls some of the trial testimony on this issue.

ED GLENNON: Jim Finks would say, without the Rozelle Rule, football as we know today will be destroyed. That sounds horrible until you start analyzing it. It might mean that a particular owner who is inept will be out of business and he'll be replaced by a different owner. It doesn't mean that the franchise is going to die.

It might be that a city that should not have football to begin with, the franchise will go to some other city with a larger population, better stadium facilities, or what have you, a better economic climate. But George Halas was brought here. I asked, Mr. Halas, with all your background, what does competitive balance mean? And I'll say some time because he took a fair amount of time to work up the definition. And this is in the transcript. Competitive balance is aggressiveness in the field.

Now, how is that for an economic justification of the rule? And I asked, is there anything further? And he said, well, there are a lot others.

I said, well, name them all little or big. He said aggressiveness on the field. And I said, yes, we've heard that. What else? Behavior of the players.

So I said, is that it? Yes, that's it. So you have this economic justification for the Rozelle Rule being in Mr. Halas's mind aggressiveness on the field and behavior of the players. It sounds almost preposterous to contemplate, but that's what it was.

BOB POTTER: The plaintiff said that the owner's competitive balance argument didn't hold water. And so there was no good reason for the court to use the less strict rule of reason standard in deciding the legality of the Rozelle Rule. Judge Larson agreed. He used the strict per se standard. Since he had also determined that the Rozelle Rule amounted to a group boycott of and a concerted refusal to deal with the players by the owners and since the per se rule does not permit room for justification of such activity, the Rozelle Rule was declared a violation of the antitrust laws.

SPEAKER: Slide right is Sandy White. And the Minnesota Vikings have gone in front of the Green Bay Packers.

BOB POTTER: But again, the Eighth Circuit Court of Appeals disagreed with part of Larson's reasoning on the issue. The appellate judges said that he used the wrong legal yardstick. That the proper standard was the rule of reason not the per se standard. In reaching that conclusion, the appellate court bought the defendant's argument that the football industry was a novel business situation, that football clubs were not business competitors in the traditional sense, and that therefore the defendant should have the opportunity to prove that player restrictions such as the Rozelle Rule were reasonable and therefore legal.

SPEAKER: Green Bay. Flag is down back in the Minnesota backfield. Preliminary signal is holding and it would appear that gain will be wiped out.

SPEAKER: Excessive holding number 68.

BOB POTTER: Again, if that had been all there was to it, the appellate court would have reversed Judge Larson's decision and sent the case back for retrial. But on this issue, as with the labor exemption issue, Judge Larson had hedged his bets. He fashioned his decision in the alternative. After judging the Rozelle Rule after the per se standard, he went on to analyze it under the rule of reason standard.

The focus of an inquiry under the rule of reason is whether the restraint imposed is justified by legitimate business purposes and is no more restrictive than necessary. Larson looked at the list of negative effects of the Rozelle Rule-- that it deterred clubs from negotiating with players who were free agents, that it deterred players from playing out their options to begin with, and that it depressed player salaries. Then he balanced those against the owner's list of business justifications-- that the Rozelle Rule prevented players from flocking to the big, glamorous Southern cities, that it protected the club's investment in scouting and player development, that it kept players together for enough time to develop them into an effective team, and that it was needed to keep spectator attendance and income high.

Judge Larson weighed the pluses and minuses. And then he came up with his own list, concluding that the Rozelle Rule was unreasonable in that it was overly broad, unlimited in duration, unaccompanied by procedural safeguards, and was used along with other anticompetitive practices like the draft, the standard player contract, the option clause, and the no-tampering rules. The key issues were whether the Rozelle Rule was essential to the maintenance of competitive balance and was no more restrictive than necessary.

The district court answered both of these questions in the negative. The players had filed their lawsuit in May 1972. In October of '76, the Eighth Circuit Court of Appeals affirmed their victory.

SPEAKER: Rashad wide to the left. White wide to the right on third down and 14 from the Eagle 14-- 35 yard line. Back to pass. Tarkenton looks, goes along with all the middle intended for Sammy White. Touchdown!

Sammy White caught it in the end zone. He beat John Outlaw down and across at a 35-yard bullet from Fran Tarkenton to Sammy White, the rookie's third touchdown reception of the year, Fran's second this afternoon, and the 297th of his career. That play was picture perfect.

BOB POTTER: Now, so far, this program has been largely devoted to esoteric legal questions. But as we mentioned earlier, the Mackey case, the Rozelle case was just one in a long continuum of events. And the Mackey case and Judge Larson were crucial to the direction of those events. Until Mackey, the NFL owners had successfully stonewalled through congressional hearings, unfair labor practice hearings, and several lawsuits. The players association had been badly beaten in the 1974 strike and had never recovered when.

Judge Larson's decision came down in December of '75. The association was hurting financially and it was showing public rifts. Larson's decision strengthened the player's hand financially as well as legally. Several of the plaintiffs in the Mackey case were suing for a lot of money and Judge Larson seemed likely to award them lots of money when and if he was affirmed on appeal.

This is in contrast to a similar decision, which was won in early 1976 by Joe Kapp in a different district court. Kapp won on the legal issues, but his jury wouldn't give him any money. Now, not only did Larson seem likely to award money to the plaintiffs in the Mackey case, he also implied that all players, who since 1963 had been subject to the Rozelle Rule, were deserving some compensation.

With that, almost every eligible past and present player in the league jumped on the bandwagon by getting into a lawsuit claiming damages. The name of that case is Alexander versus the NFL. It is a class action lawsuit with about 5,700 plaintiffs. Of course, that suit was filed in front of Judge Larson as well less than three months after his decision in the Mackey case.

Between Mackey and Alexander, the players were looking for over $20 million. So in this and other arenas, things really started looking up for the players. In July, the National Labor Relations Board finally awarded reinstatement and back pay to player association leaders Curry, Alexander, and Keating, who earlier had been bounced around by the owners.

In September 1976, Jim "Yazoo" Smith won his case challenging the college draft under the antitrust laws. And Smith, unlike Kapp, got a lot of money, over a quarter of $1 million. Suddenly, the stonewalling by the owners was getting expensive. So in October, when the Eighth Circuit affirmed Judge Larson's decision, the end was in sight.

After the decision, the players concentrated on finishing the 76th season and gathering their forces for a final period of collective bargaining. That bargaining took place in the first two months of 1977. A powerful silent figure in these negotiations was Judge Larson wielding his $20-million club. Larson refused to be interviewed for this program. By March 4, 1977, a new collective bargaining agreement was signed.

SPEAKER: We compromised on the reserve system, changed it for the better in all respects, got a number of benefits for players that we never had before. And somehow or other, the chemistry was right and we got an agreement.

BOB POTTER: What are the highlights of that agreement?

SPEAKER: First, reasonably high minimum wage. We start with a rookie at $20,000 working up to fifth year player at $30,000. Whereas, under the old agreement it was $12,000 for a rookie and $13,000 for a veteran. So we think we'll improve a lot of players immediately.

Secondly, there's a draft. But in that draft, most of the drafted players will be protected because we've determined in advance what a reasonable contract would be for a two, three, or four year contract, increasing by $10,000 for each year of the contract, and some of that money is guaranteed. Third a player who is injured this year and can't play next year would get half his salary next year. Whereas, in the past if he's injured, he gets his pay for that year but not for the next year.

Fourth, we have impartial arbitration of all grievances, which is a major step forward. We have a new standard player contract, substantial increases in pension and insurance benefits, and union security. So that you don't have to join the union, but if you want to play football you're going to pay the equivalent of dues.

SPEAKER: 480.

SPEAKER: Brockington under some pressure to complete the McClanahan hit immediately. Got only about 4 on the play as Fred Carr, number 53, wrapped him up.

SPEAKER: Carr on the tackle.

JOHN FRENCH: The option compensation clause or Rozelle Rule has been replaced in the new collective bargaining agreement by a new rule which the players union has agreed to and which the players themselves have ratified. And what's been done is to make the compensation-- first, the principle of compensation is retained. So the old idea that the clubs had that there had to be some compensation to preserve league balance has been retained under the new collective bargaining agreement and will be a part of the system.

What has been done is to take the bargaining aspects of the old rule, that is the negotiations between the clubs and the ultimate decision-making authority of the commissioner and eliminate them by establishing automatic rules as to what is proper compensation. In the first place, compensation cannot include active players anymore. Second, there are automatic standards for what is proper compensation for a given player. The fundamental point is that if a player has been earning x amount of income with the club that he wants to leave, that amount of income indicates what his new club must give his old club in compensation.

SPEAKER: And I'm sure Bud Grant was happy to see that.

SPEAKER: Yeah. Tarkenton trying to get first down to White from Kleet and he has Sammy White coming into the middle again. And we mentioned Tarkenton that very much in his game plan and covered on the cornerback Willie Buchanon who made the tackle. First down, Minnesota.

SPEAKER: Watch the blocking--

MIKE LYNN: Something that we have now that we didn't have under the Rozelle Rule is that we have right of first refusal. So that if we really and truly didn't want to lose a particular player, we never have to. And we have the right to either take compensation in the way of a predetermined draft choice, or choices, or match the offer that the player has received from the new club.

SPEAKER: As far as the sports antitrust litigation in my judgment, much of it is a thing of the past. Where there is in effect a bona fide-- I should say a collective bargaining agreement, which is the result of bona fide arm's length bargaining. This is true in baseball now, in hockey, in basketball, and in football.

BOB POTTER: In the Mackey case, Judge Larson awarded $2.2 million to the plaintiffs. The March agreement between owners and players called for a five-year $107 million contract. In August, Judge Larson approved a $13,675,000 settlement in the Alexander case. This has been challenged in turn by several players, but it probably will be upheld by the Eighth Circuit. $14 million was about how much profit the NFL teams made in 1975.

SPEAKER: I think ticket prices in most cases went up anywhere from 90% to 100% during this period of time. Now, since the agreement, and looking at it from a business standpoint, that I don't think that we would-- the Minnesota Vikings have any intention of increasing our ticket prices over the term of this agreement. So I think from that way, the fans certainly have benefited.

BOB POTTER: As with many lawsuits of this magnitude, there is a group much interested in the outcome but still not represented in the courtroom. How about the sports consumer who ultimately foots the bill for these huge profits and salaries? Ralph Nader, for one, says that high ticket prices are the fault of greedy owners.

RALPH NADER: And there are many issues in professional sports. You have monopoly issues, the tax subsidies to the stadiums. You have the consumer fraud problem, keeping most people out if they can't afford a season ticket. You have the hyper commercialism, the tax shelters, shuttling around franchises from one city to another depending on a millionaire's--

SPEAKER: Most of the teams in the National Football League, the last thing they want to do is to overcharge for their ticket. Our tickets on the whole here in Chicago, were now charging $9.50 for each one of our games and that's about average in the National Football League. And the reason why we have increased our tickets up to $9.50 is simply because we have to keep pace with our competitors. From a competitive standpoint, we have to be able to pay the players.

SPEAKER: Well, that may be the case, but I think you have to look to how much of it is going to the player and how much of the pie is going to management. My inclination is that the fans shouldn't have to suffer nor the players should have to suffer.

SPEAKER: I think that the owners of the National Football League provide more free entertainment to this country than more hours of free-- I say, free entertainment to this country than any other business.

[MUSIC PLAYING]

SPEAKER: To play the game and to play it well, you almost have to think that you can go on forever, that you're invincible, yeah.

SPEAKER: Beverly another good punt.

BOB POTTER: This program was produced at Minnesota Public Radio by Bill Tilton with technical direction by Dave [? Phelan. ?] This series is made possible with financial assistance of the Minnesota Bar Foundation and the Nash Foundation. We'd like to thank WCCO Radio, the Minnesota Vikings, and the National Football League for permission to rebroadcast play-by-play excerpts. Thanks also to John Cowan and Tad [? Selzer ?] for their continuing help with the series. This is Bob Potter speaking.

SPEAKER: [INAUDIBLE] for the 14 yard line of Green Bay.

[MUSIC PLAYING]

[INAUDIBLE] going to let it roll. [INAUDIBLE] First down, Green Bay at 12the second of the second quarter. [INAUDIBLE] early in the third period. Brings the opportunity to talk about the so-called old Vikings, John. They have been bringing along--