What is the Norris-LaGuardia Act? The legal issue at the core of Brady v. NFL

The U.S. Court of Appeals for the Eighth Circuit has now dedicated a page to all of the filings in Brady v NFL, et al, so I’ve caught up on the reading. The gist of the case, legally at least, is as follows. The NFL owners and the NFL Players Union fought and negotiated as part of the labor process, until negotiations broke down. In response, the NFL “locked out” players, meaning that they weren’t allowed in the building to use facilities and would not be paid, and the players, in a unique move, “decertified” their union, professing to become not a union but simply a collection of individual players, represented as a “class” in this lawsuit (i.e. you have plaintiffs who are similar to other potential plaintiffs in order to limit everyone needing to file their own lawsuit) and by a “players association” rather than a true-blue union. The obvious and stated purpose of decertifying was that it lets the players sue, and with a decent argument: Although, in the intersection between the labor laws and the anti-trust laws, there is an exemption for certain acts in the labor context that would be illegal if labor law didn’t apply, the NFLPA felt that by decertifying they could essentially force antitrust scrutiny of the owners’ behavior. Exhibit A of a case where otherwise illegal anti-trust conduct was exempted because of the intersection between labor law and antitrust was Maurice Clarett v. NFL, decided by the U.S. Court of Appeals for the Second Circuit (New York) and written by then-Judge (now Supreme Court Justice) Sotomayor. Clarett sued the NFL, arguing that the NFL’s rule that you had to be out of college for three years before you could declare for the draft was an unlawful restraint of trade. The district court agreed, but the Second Circuit reversed holding, among other things, that the fact that the NFL had a collective bargaining relationship with a union (even if Clarett wasn’t part of it) shielded the NFL from anti-trust scrutiny even if it could not impose such a rule in the non-union context.

Felix Frankfurter, who drafted the Norris-LaGuardia Act, left us with a final enigma: When will we get some football?

Hence the decertifiation of the NFLPA and the players’ core argument of this case: you can’t lock out non-union employees. There is stuff in the NFL’s response about a “sham decertification” (really a separate issue, though it is important background for the judges), the NFL’s primary response is different, and more technical. The argument is that, whatever the merits of this case — whoever is right or wrong — the Norris-LaGuardia Act says that federal courts simply cannot issue an injunction in this case. In other words, the NFL’s argument is that even if the players were right, a federal court cannot order the remedy they want. This sounds technical and boring, but it’s surprisingly interesting and there is an awful lot of history packed into the few words.

The key language in the Norris-LaGuardia Act prohibits federal courts from issuing injunctions “in a case involving or growing out of a labor dispute.” The Act defines a “labor dispute” to include “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.” That is broad language, and that is essentially the NFL’s argument: This case certainly “involves” or “grows out of” a “controversy concerning” the “negotiat[ion]” or “arrang[ment]” of “terms or conditions of employment”; the two sides were fighting about wages, salaries, and benefits — the way that giant economic pie called the NFL is divided — and so no injunction can issue. End of case.

There is slightly more nuance to that to be found in the NFL’s brief (written, in chief, by the excellent former Solicitor General Paul Clement), but that is the upshot and it was, essentially, accepted by a majority of the Eighth Circuit:

“The district court reasoned that this case does not involve or grow out of a labor dispute because the Players no longer are represented by a union. We have considerable doubt about this interpretation of the Act. . . . The Act does not specify that the employees must be members of a union for the case to involve or grow out of a labor dispute.”

The Eighth Circuit only had to determine a “likelihood of success on the merits,” and will not render a final judgment until after oral arguments in June, but everyone — including the players in their brief — recognize that a majority of the Eighth Circuit is inclined to read the language of the Act broadly and in the NFL’s favor.

But the player’s contrary argument, whether or not ultimately successful, is fascinating, and highlights the unique role and changing nature that laws play in society.


As stated above, the NFL’s argument is a straightforward textual argument: No injunctions may issue in cases involving “labor disputes,” and, for this reasons stated above, this sure sounds like a labor dispute. The players’, by contrast, say that you have to read the Norris-LaGuardia Act in context; this language did not drop out of the sky and the NFL’s argument is not at all the way that the Act was intended to be used. Note at the outset that this is not an “ignore the text” “living document” approach; the players’ begin their argument with a lengthy exegesis of the Act’s text, showing why they think, on the words alone, it should not be read as broadly as the NFL reads it. But the core of their argument is one about the Act’s purpose and history.

The Norris-LaGuardia Act was passed in 1932, at a time of great strife between employers and organized labor. The principal draftsman of the Act was Felix Frankfurter, a Harvard Law professor who would go on to become a Supreme Court Justice. The problem the prohibition on injunctions was intended to remedy was that employees would go on strike and employers would frequently file a lawsuit requesting an injunction and often judges, who were perceived to be “in the pocket” of employers, would often grant them without hearings or without much process. Even if overturned later, these injunctions forced employees back to work and destroyed unions’ negotiating leverage. Again, remember, this was back in 1932. As the Supreme Court has explained this history:

The Norris-LaGuardia Act was responsive to a situation totally different from that which exists today. In the early part of this century, the federal courts generally were regarded as allies of management in its attempt to prevent the organization and strengthening of labor unions; and in this industrial struggle the injunction became a potent weapon that was wielded against the activities of labor groups. The result was a large number of sweeping decrees, often issued ex parte [i.e. after only speaking with management or management’s lawyers, but without discussing with employees], drawn on an ad hoc basis without regard to any systematic elaboration of national labor policy.

In 1932 Congress attempted to bring some order out of the industrial chaos that had developed and to correct the abuses that had resulted from the interjection of the federal judiciary into union-management disputes on the behalf of management…. Congress, therefore, determined initially to limit severely the power of the federal courts to issue injunctions “in any case involving or growing out of any labor dispute. . . .” § 4, 47 Stat. 70. Even as initially enacted, however, the prohibition against federal injunctions was by no means absolute….

The Norris-LaGuardia Act was intended to be the centerpiece of Roosevelt’s legislation protecting unions from unfair labor practices and encouraging the growth and balance of labor, but the substance was largely superseded by the passage of the Clayton Act and the National Labor Relations Act. But, even more importantly, labor relations in this country have shifted considerably; through those Acts labor balanced the scales with management (some would say went too far), and now, generally (with a few high profile exceptions aside), labor and management disputes are not a central part of this country’s landscape. And yet the Act’s prohibition on injunctions that grow out of a labor dispute remains. As the Supreme Court has said:

As labor organizations grew in strength and developed toward maturity, congressional emphasis shifted from protection of the nascent labor movement to the encouragement of collective bargaining and to administrative techniques for the peaceful resolution of industrial disputes. This shift in emphasis was accomplished, however, without extensive revision of many of the older enactments, including the anti-injunction section of the Norris-LaGuardia Act. Thus it became the task of the courts to accommodate, to reconcile the older statutes with the more recent ones.

Indeed, this is what I find so interesting about the case: Here we are, in 2011, talking about a dispute between — of all things — football players and owners of football teams, and the key legislation was designed to protect union workers back in 1932 who were being routinely jobbed. But, Thomas Jefferson’s famous statement that laws should expire every thirty-years or so and be enacted by each generation for itself aside, the prohibition remains on the books and must be interpreted. The Supreme Court has also repeatedly said that different rules should not apply to football, in neither the players’ and owners’ favor.

The players, in their brief written by equally excellent Ted Olson (also a former Solicitor General of the United States), argue that the text of the Act cannot be divorced from the time in which it was passed and the evil it sought to remedy. They don’t quote Oliver Wendell Holmes, Jr., but he summed up the principle as well as it will ever be summed up:

“A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.”

The upshot is that words like “involving or growing out of a labor dispute” cannot be read in a vacuum; they must be read in the context in which they are used. Buttressing this fact, Olson and the players argue that they are aware of no case that has ever applied the bar on injunctions to apply to a lawsuit by employees (players), rather than by employers/management (the owners). They say that every case to address the issue has dealt with the barring of lawsuits brought by management seeking an injunction against a strike, and that it has never been held to apply to injunctions against lockouts imposed by employers.

But isn’t this just wishy washy purpose, background, theory? Not the actual law passed? The players have a final response to that: Congress actually built this purpose into the Act itself. From the brief (citations deleted):

Even if any ambiguity remained as to the meaning of “labor dispute,” Section 2 of the NLGA conclusively resolves it by instructing this Court to adhere to the only definition that is consistent with the statutory purpose: construing the NLGA to reach only disputes involving “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Section 2 is not legislative history; it is a congressionally enacted canon of construction to be followed “[i]n the interpretation of this chapter and in determining the jurisdiction and authority of the courts of the United States.” Although Congress sometimes goes “beyond the principal evil” to which a statute was directed to “cover reasonably comparable evils,” here Congress expressly declared the policy underlying the NLGA and provided an interpretive command that the Supreme Court has instructed courts to obey in construing the statute. Section 2 forecloses the NFL’s attempt to expand the scope of the NLGA far beyond its declared policy.

All of this is intended to support the players’ argument that “labor dispute” is not to be read to include just any dispute against employers and employees and instead must truly be a dispute between a union and an employer or at least some analogous situation. But isn’t that also a key here too? Are the players really not a union? As the majority of the Eighth Circuit said:

In this action – filed the same day the union discontinued collective bargaining – the Players seek relief concerning terms and conditions of employment. Given the close temporal and substantive relationship linking this case with the labor dispute between League and the Players’ union, we struggle at this juncture to see why this case is not at least one “growing out of a labor dispute” – even under the district court’s view that union involvement is required for a labor dispute.

If I were on the Eighth Circuit, my questions would focus on this thorny issue:

  • To the players: What if we grant your requested relief? Will you reform as a union to obtain more bargaining power, after which then the NFL will impose a new lockout, then you’ll decertify again, and then you show up in court again? In order to not “grow out” of a labor dispute, do the players have to somehow say they won’t become a union for a certain amount of time?
  • To the NFL: First, why wouldn’t a ruling for you be overbroad? If we say that any case “involving” a dispute over wages is barred by the Norris-LaGuardia Act, is every dispute for back wages, ERISA cases over pensions, terminations of employment, employment discrimination, and so on also barred? Aren’t they disputes between employers and employees about the “terms of employment? Why not just say that the Act is limited to union cases? And second, if the answer is the Act is not limited to just union related cases but has to be tethered to some union process, when does that stop applying? Is it just a waiting period? If the players filed this lawsuit six months from now, does it no longer “grow out of” a union process? What about two months? One month? Two weeks? How do you draw that line.

Such judicial questions are just meant to tease out the contours of the decision; they may not make it into the final opinion, and, as I said, based on the stay ruling the players have an uphill battle to change the judges’ minds.

This case highlights the sometimes odd legal landscape we live in, the bizarre place professional sports inhabits, and the complexity and difficulty with interpreting statutes meant for one time and context but that apparently apply to another. In the end, this ruling is a small piece of the larger dispute between players and owners, and eventually they’ll reach some kind of deal — the players need owners to have a place to play, and owners need players to play the games they make money on. The giant multi-billion dollar pie will be divided; the only question is in what portions.

But Brady v. NFL, a minor blip, nevertheless draws on and reflects our nation’s changing, evolving, and shifting labor relations — from the sordid days of the ’20s and ’30s, through the rise and decline in the influence of unions, to other laws intended to do the work the Norris-LaGuardia Act was intended to cover, and this little phrase about a “labor dispute,” is the fulcrum provision in a lawsuit between your favorite football players and your favorite football team. U.S.A.

  • Jass

    Fascinating stuff. I agree the players have an uphill battle, but I am sympathetic to the argument that a statute meant to protect employees shouldn’t be used against them. We’ll see though, especially since these aren’t that sympathetic of employees (millionaire football players)

  • Anonymous

    There are a lot of NFL players past and present that aren’t millionaires. PS guys make 70-80 grand a year and then if they are lucky get 2-3 years of active duty at the minimum and then they are out of the league. There are a lot of non-PS players that play at or near the minimum and they are lucky to have a 5 year career. I’m not saying how or if this impacts the lockout, but drawing the line in the sand as billionaire owners v millionaire players has become a buzz phrase thrown around that is simply not true on the player end. For me, as despicable as the lockout is in terms of the “9 billion dollar” pie to split it up, it’s simply MORE despicable from the owners’ end. They are the billionaire side that locked out the players and as far as I can tell they have done it for no good reason. Therefore, I think the players’ cause is legit…..I think we would all agree that no matter how much money we make or what type of job we have, when the boss storms in and tries taking things from us without justification then the fight becomes a matter of principle. I see the owner side as greed….I see the player side as principle. And most importantly, I see Roger G as the biggest douche bag in America. I don’t expect him to have a long career as commish….I think he was hired to soothe the people during this lockout and he failed. So once the lockout is over the owners will slowly transition to someone else.

  • Anonymous

    What I find interesting are the dynamics at play with this labor dispute.  Personally, I’m in no hurry to watch NFL football (NCAA is just fine), so I really don’t have a side to take in this, but what I think is something to take note of is how foreign these vital concepts are to those who really do intently follow pro football.  

    Most beat writers, bloggers, and ‘super fans’ just cannot relate or have a foundational knowledge of what is taking place from a legal and economic perspective.  It cannot be reduced to the emotion of “hit somebody” (“hey these guys are just playing a game….they should just play ball an’….”).  This falls right in the lap of an intellectual SME like Chris….kudos to your blog for covering this from all points throughout the off-season.

    Another thing that I think might be worth looking at months from now is how Goodell and Co have been preparing to leverage via Machiavellian politics since he took the position.  It was an inevitable course, so documenting all the ways they have really worked at framing their product to best have the fans (consumer) sympathetically identify with the league and the owners consortium.  Whether it was wrapping themselves in patriotic, blue-collar motifs or other consumer gimmicks to force a narrative and perception of what the NFL “represents” to create a Disney-like affability to every possible viewer. 

  • 4.0 Point Stance

    Outstanding exegesis Chris. As to your concern about the possible breadth of the phrase “labor dispute” I’d argue that your examples are “employment disputes.” Of course, that would sound like a synonym to any normal person, but the gulf between “labor law” and “employment law” turns out to be surprisingly wide. I realize there’s a specific definition of “labor dispute” here, but it seems to me that an ERISA or wrongful termination claim is not related to the “terms or conditions” of employment, much less the “association or representation” of people regarding the terms and conditions of employment.

    Shame this case is in the 8th instead of the 7th – I’d love to see Judge Posner get a crack at this one.

  • Anonymous

    I agree that there is typically a difference between a “labor dispute” and other “employment” and other disputes. The NFL’s brief, however, spends a good amount of time saying that labor should be read in light of the broad statutory definition (which would seem to cover even employment disputes) and a colloquial meaning of “labor” as in “work,” whereas the player’s brief spends a lot of time with the argument you’re making: that there was a common law (and statutory law) history to the term “labor dispute,” and Congress was drawing on that when it enacted the Norris-LaGuardia Act. I’m sympathetic to the argument.

    In any event, it’s an interesting issue — good fodder where text meets history and purpose, whether to focus on legislative history or even a preamble written into the law itself, and then a wholly new circumstance with the NFL, decertification, etc. 

  • JMV

    Chris,
    I have been checking here every few days hoping you had something to say about “Brady” and you did not disappoint. Your question to the players is a good one, but apparently one that Judge Nelson already asked and answered in her opinion. The players only recertified (in 1993) at the request of the league.

    The interesting thing about this case is that the players don’t actualy need a union (or at least a CBA) as much as the owners do. Without a CBA many of the practices the owners use to control their costs are probably barred by anti-trust law. If this issue makes it to the full appelate court, or to the Supreme Court, that issue may be a key ingrediant of any decision.

  • rob

     The KY Supreme Court had a decision a few years ago that seems somewhat analogous in general principle.  KY allows handguns to be carried “in a glove box” while traveling without violating the concealed carry laws.  A guy was caught with a gun in center console.  He argued that any compartment in the car was a glove box and the law was written before center consoles existed.  The decision was basically:  the legislature had many sessions to change it since the law passed and chose not to, so we assume they meant exactly what they wrote.

  • rob

    Jass – if the statute was ONLY meant to preotect employees, congresss should have very clearly written it that way.

    The only thing that is certain is that it isnt clear.

  • Anonymous

    Fair enough point, but that argument usually comes up after some decision of some court has held the statute to mean one thing and Congress or the legislature never changes it after that, and we can read their inaction as tacit approval. It doesn’t work as well here because we don’t have any recent cases (or really any at all) dealing with a situation like this, and most courts have limited the Act to applying only to union type activities despite the broader language, so it’s hard to read into Congress’s inaction. Again, I don’t think that points either way, just makes it even more difficult to discern what Congress meant.

    In addition, you can get into theories of statutory interpretation and democratic approval: Do we care only what the enacting Congress thought (because they were elected and actually passed the law), or do we care what some kind of moving and evolving idea of “Congress” over time thought? Like say the enacting Congress wanted to limit it to unions, but later Congresses, seeing how the law was used or interpreted, failed to Act, giving their tacit approval. Was that democratic given that they didn’t pass a law giving effect to that changed understanding?

    As you see the rabbit hole goes deep. I think generally it doesn’t do us much good here. I think it’s pretty clear the “intent” of the law was to help unions, but it was also drafted broadly enough that the text and more general “purpose” do point to the NFL’s argument that the upshot of the law was just to keep federal courts out of the labor dispute business. But that argument is pretty broad, and the players will continue to argue that it’s really unworkable and can’t be what Congress really meant. We’ll see. 

  • JMV

    The arguement really seems to boil down to a distinction between “labor” disputes v. employment disputes.

    Using the leagues logic, if several disgruntled former employees started a blog criticizing and dengrating their former employor the courts could be barred from interfering since the issue agueably arises out of a labor dispute. I’m not sure copnservative judges want to give any law such sweping application.

  • SS

    The Players’ argument (and this column to the extent that it quotes that argument) ignores the fact that the National Labor Relations Act, which is the context they try to use to define “labor dispute,” does not apply only to “unions.”  It applies to all “concerted activity” for collective bargaining or for mutual aid and protection.  Clearly, the players continue to engage in “concerted activity,” which only takes 2 players acting together, for “mutual aid and protection.”  They admit that they still have a “player’s association” and most of them are still jointly pursuing their collective bargaining strategy.  Therefore, whether they are a “union” is not the question.  The question is whether they are engaging in concerted activity and the answer is clearly yes.  Unfortunately, for the players, some of the lawyers who devised their strategy, not necessarily Ted Olsen who is merely trying to make the best case with what they gave him, were too clever for their own good.