these reasons, the draft eligibility rule does not come within the exception to the rule that matters involving persons outside the employment relationship. Being a non-mandatory subject, the eligibility rule fails the second prong of the standard and should not be immunized from antitrust interdiction. The third prong of the standard requires that the restraint under scrutiny be a product of vigorous collective bargaining before immunity will attach. In both Mackey and McCourt, the primary factor was the extent to which the free agent indemnity rule under challenge was the product of actual bargaining. The Mackey court determined that the Rozelle Rule was not the product of bona fide arms-length bargaining. In McCourt the court concluded that the rule had been included in the collective bargaining agreement and was not the product of bona fide arms-length bargaining and would not come within the labor exemption.If bona fide arms-length bargaining were the only ground for finding the eligibility rule not covered by the labor exemption, then one should not conclude that the matter falls outside the area of immunity. Given the determination that the matter fails all three prongs of the standard, however, lack of actual bargaining is one more justification for not extending immunity. Many agree that professional sports leagues present a unique form of economic organization. All of the assumptions about sports leagues all lead to the belief that this is a special industry, deserving of special antitrust consideration and much of the case law and literature have shown that the business of sports entertainment cannot be thought of in the same way as other more traditional forms of industrial organization. Certain league practices that would fail any test of Sherman Act liability in other contexts in other industries must be justified because of the unique qualities that professional sports leagues present. Because of this the courts ...
