no issue as to whether the restraints and the unions participation in its adoption satisfied the Mackey test.In examining the three prongs of the Mackey test, it can be found that the first prong mandates that the impact of the practice being examined fall primarily on the contracting parties before agreement on the matter will come within the labor exemption. The origin of this requirement can be found in the U.S. Supreme Court precedents dating as far back as 1945. In those cases, the Supreme Court refused to grant antitrust immunity to agreements between employers and unions even though the agreement concerned wages or some other matter of mandatory bargaining and was of central concern to employees and unions. The second prong of the test requires that the particular player restraint being examined be a mandatory subject of bargaining within the meaning of the National Labor Relations Act. The Courts refusal to grant an automatic exemption to mandatory subjects suggests that the second prong of the test is somewhat broader and more flexible than the Courts holding actually state.The draft eligibility rule is not a mandatory subject of bargaining because those eligible players are not employees to whom an employers obligation to bargain flows and the subject matter itself, employment eligibility, is not within the definition of wages, hours, and other terms and conditions of employment. Since college undergraduates are not employees within the meaning of the Sherman Act and could not be included in a bargaining unit with active players nor vote for the selection of a bargaining representative, the duty to bargain on their terms and conditions of employment does not attach. The draft eligibility rule concerns the relationship between the employing clubs and persons outside the collective bargaining relationship without really affecting active players. And, the interests of prospective players and active players conflict. Due to ...
