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Friday, January 18, 2008
Aaron Zelinsky's "Three Strikes for the National Labor Relations Act"

We received an excellent submission from Aaron Zelinsky, a 1L at Yale Law School, concerning the National Labor Relations Act and the steroids scandal in baseball. Without further adieu . . .

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Three Strikes for the National Labor Relations Act

It’s baseball season again in Washington. Representative Henry Waxman is calling everyone from Roger Clemens to Bud Selig to testify about performance enhancing substances in Major League Baseball. For all the hype, these hearings are less likely to curb steroid use than the Nationals are to win the pennant. If Waxman is serious about combating performance enhancing substances in professional sports, he should propose modifying the National Labor Relations Act (NLRA) to allow the Commissioners of the major leagues to impose unilaterally performance enhancing substances testing. Overseers already have this power in the minor leagues and the Olympics. The pros should be no different.

Senator Mitchell’s report on performance enhancing substances in baseball suggests improvements for baseball’s testing policy. In particular, Mitchell calls for increased transparency of the testing process, independence for testing authorities, and greater frequency of unannounced testing, particularly in the off season.

The NLRA effectively blocks the adoption of Mitchell’s suggestions by making drug testing of employees a mandatory subject of collective bargaining. This means that the Players Association must agree to any change in testing. Needless to say, the foxes rarely seek stronger protection of the henhouse. In Mitchell’s words, the Players Association has historically “opposed mandatory random drug testing.”

Moreover, the policy behind the NLRA does not apply to pro sports. The general counsel of the National Labor Relations Board declared that “a drug test is designed to determine whether an employee or applicant uses drugs, irrespective of whether such usage interferes with ability to perform work.” Since, for many workers, drug use is unrelated to job performance, their unions have a legitimate interest in protecting their privacy rights. Such a rationale does not apply to baseball. Performance enhancing substances fundamentally undermine the players’ ability to perform their work; being clean is an intrinsic part of their job.

Congress should, therefore, modify the NLRA to allow the major league commissioners to impose unilaterally performance enhancing substance testing. Both the Olympics and minor leagues allow their overseers similar power. The mere presence of a union should not insulate the pros from such testing.

Modifying the NLRA is neither difficult nor unprecedented. The Omnibus Transportation Employee Testing Act of 1991 mandates that over 12 million employees in the transportation industry undergo random drug and alcohol testing.

Like workers in the transportation industry, the use of drugs in pro sports poses a public safety risk. Young athletes watch and emulate the pros. The National Institute on Drug Abuse estimates that hundreds of thousands of high school athletes currently use steroids each year. After Mark McGuire went public about his use of androstenedione, andro use in high school student increased tenfold the following year. Performance enhancing substances in pro sports pose a public health hazard that deserves congressional attention.

Some may argue that the commissioners will abuse their power to impose testing for performance enhancing substances. However, there is no evidence of abuse in the Olympics, minor leagues, or amateur sports where overseers have imposed testing unilaterally.

As any good ballplayer knows, the only important pitches are those ahead. Instead of focusing on the steroid use of the past, Representative Waxman should concentrate on the testing program of the future. Bud Selig should have the same ability to impose testing on the pros as he does in the minor leagues. David Stern should be able to test basketball players just as the IOC tests them. Congress should modify the NLRA to remove drug testing as a mandatory subject of collective bargaining and allow the commissioners to clean up their sports.

Aaron Zelinsky is a first year student at the Yale Law School. He can be reached at aaron.zelinsky[at]


Aaron: so true! Good job. Let's see how it plays out...

Anonymous Anonymous -- 1/18/2008 2:26 PM  

In fact, the kind of drugs we are talking about actually improves on-the-job performance for baseball players (if this wasn't the case, the players wouldn't be taking the drugs in the first place).

This is the reason why the rationale here is failing, and also (as has been pointed out on this blog) why the league (that is, the owners) has little incentive to stop the drug use.

The league should thus leave the decision to the players: either switch to an "anything goes" format, or have the players (via their association) be responsible for regulating each other.

Anonymous Anonymous -- 1/18/2008 2:50 PM  

Aaron, what a great posting! I am glad to see 1Ls jumping in with interesting thoughts.

There is, however, one problem with this suggestion. If drug testing were not a mandatory term or condition of employment, and MLB clubs unilaterally implemented a ban of players that have tested positive for drug use on three occasions, then a court might find that the agreement amongst clubs to ban such players actually violates Section One of the Sherman Act as a concerted agreement amongst competitors to boycott a class of employee. While a court would likely look at this sort of group boycott under antitrust law's Rule of Reason, it would be difficult for the MLB clubs to show a pro-competitive effect of such a policy, in the economic sense. (For those that might be thinking about the 1961 Molinas case and the S.D.N.Y's decision allowing the NBA clubs to ban for a life a gambler, remember that case was decided under the old interpretation of Rule of Reason, requiring just a legitimate business reason, and not a pro-competitive effect).

Indeed, one may argue that baseball is exempt from antitrust law under the Curt Flood Act of 1998. However, given this dispute would involve a labor-side claim brought by an MLB player, one can reasonably argue that the language in the Curt Flood Act does not extend baseball's purported exemption nearly this far.

Blogger Marc Edelman -- 1/18/2008 2:59 PM  

Aaron: forget others' claims of potential violation of antitrust laws. Congress can amend the law/acts. It's that simple.

Anonymous Anonymous -- 1/18/2008 3:30 PM  

Don't forget about the other 8000-lb. gorilla, the Americans with Disabilities Act; if a court can find someone who drinks is an alcoholic, the ADA can get invoked--so by extension it could apply to someone using 'roids, clear, etc.!

Anonymous Anonymous -- 1/19/2008 1:35 PM  

You don't need a congressional amendment to the NLRA. True, managment must bargain with unions about drug testing, which is generally considered a mandatory subject of bargaining. But management can also unilaterally implement its final offer upon impasse. In reality, the threat of unilateral implementation is an excellent check on unions who, in representing the employees' best interests, will seek the best deal possible within the confines of reaching an actual agreement.

The suggestion that Congress should amend the NLRA to allow management to unilaterally implement a mandatory drug testing policy is against the NLRA's national labor policy (and in my view bad public policy). First, Congress should not be in the business of singling out a particular industry. Second, the suggestion contravenes the underlying policy of the NLRA--to allow parties to come to allocatively efficient solutions to workplace problems through collective bargaining. Along those lines, allowing management to unilaterally implement mandatory drug testing (without bargaining) interjects substantive regulation into the NLRA. There are two problems with this approach. First, that the S.Ct. has criticized the NLRB for creating substantive contractual terms demonstrates the strong public policy against interfering in the bargaining relationship. (That the S.Ct. has criticized the NLRB for engaging in substantive regulation of CBAs suggests only that the NLRA, as currently written, has this public policy.) Second, this approach puts a thumb on the bargaining scale in favor of management. If this is a significant enough problem for management then management must bargain for it--i.e., give up something in return.

Most significantly, Congress can actually regulate the use of steroids (without amending the NLRA) and get the desired effect. In other words, were Congress (and this Administration) to actually do its job, they would more heavily regulate steroid (and human growth hormone) use. Now, if a player breaks a federal law regulating drug use then it would be within management's right to discipline that player.

So the upshot is this: Although we all want to see more regulation of performance-enhancing drugs, amending the NLRA is not the best way of solving this problem. In fact, amending the NLRA in this way creates many more problems than it solves. The Players Union does not have the ultimate power to block management attempts to implement a drug testing policy because management can always unilaterally implement its final offer and its failure to do so likely shows that it too did not want a drug testing policy (i.e., wanted players to use such drugs to increase the likelihood of record-breaking . . .). Finally, management has within its power to handle this problem through disciplinary procedures, especially if Congress would simply increase regulation of such drugs.

Anonymous Lo -- 1/20/2008 6:22 PM  

What justifies this statement: "Performance enhancing substances fundamentally undermine the players’ ability to perform their work; being clean is an intrinsic part of their job."? It's not clear to me how being "clean" is any more intrinsically a part of a baseball player's job than it is part of a forklift driver's. In fact, given that the forklift driver is likely to hurt someone if he's on the kind of drugs that he's tested for at work, being clean is "intrinsically" more a part of his job.

Further, the "copycat" rationale is widespread and, I think, underexamined. Before even asking the people who cite it to back it up empirically, we should ask if it even makes sense. Before baseball started testing for steroids, how did anyone know that steroids were being used? Kids can't be saying, "Well, Rafael Palmeiro used steroids, so I'm going to" unless they know that Rafael Palmeiro used steroids; and they didn't know that Palmeiro used steroids until Congress made a big stink!

Blogger Jason Wojciechowski -- 1/21/2008 11:38 PM  

Way to go big Z! Agreed on all points. Let's take the heat off of past steroid users and let Miguel Tejada focus on his upcoming season with the 'Stros. What do you think about the records that were broken?

Anonymous Tammer the Jammer -- 1/24/2008 8:43 AM  

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