League Antitrust Policy and Guidelines
Purpose of Policy
One purpose of this antitrust policy is to remind representatives of League member orchestras that the antitrust laws apply to them. Another purpose is to provide guidelines about matters that can and cannot be discussed in the League environment -- at formal League meetings, on e-mail discussion groups facilitated by the League, or at informal events sponsored by the League, such as receptions and dinners.
Coverage of Policy
This policy does NOT summarize the law. Antitrust law is complex; it is not possible to summarize it here. Further, it does not describe what is legal; it only provides guidelines that will minimize the risk to members from potential violations of the law.
This policy does NOT apply to activities outside the League. As always, you should seek your own legal counsel in regard to these activities outside the League environment.
Prohibited Discussion Topics
The most sensitive areas of the antitrust laws are those related to compensation and pricing. Thus, it is not appropriate to discuss in the League environment, the amount you pay or plan to pay for salaries or guest artists, or what you plan to charge for tickets or other things you sell. It is not necessarily illegal if you do so, but because an “agreement” is proved by circumstantial evidence, it is better not to discuss these subjects.
The appropriate way to gather general information about administrative salaries and individually negotiated musician salaries is through League surveys. The surveys need to include enough members and be reported in aggregate so that individual orchestras’ data is not disclosed.
The League currently has a survey on salaries, and plans to institute other surveys. League surveys are limited to historical data and will not include information related to prospective plans.
Historical or prospective information regarding specific administrative or musician (e.g. overscale) salaries should not be discussed in the League environment.
It is also not appropriate to discuss the amount you pay or plan to pay for guest artists.
The League distributes existing Collective Bargaining Agreements in a searchable electronic form. The League’s Orchestra Leadership Academy conducts sessions on how to negotiate and develop negotiation strategies as well as other educational programs. Such actions are appropriate. However, it is not appropriate to discuss prospective negotiating positions or strategies in the League environment.
Elements of labor law may apply to your behavior outside the League environment. For specific guidance in these areas, we suggest you seek legal counsel.
It is not appropriate to discuss, in a League environment, the amount you charge or plan to charge for tickets or other things you sell.
To ensure compliance with the antitrust laws, each scheduled meeting of the League will have a written agenda. That agenda should be followed. It is the duty of the committee/program chairman to ensure that members do not stray from the agenda into prohibited discussion topics.
The Law in General
There are a number of antitrust laws. The one that most often concerns members of an association is Section 1 of the Sherman Act. It prohibits “agreements” which restrain trade.
Most “agreements” are proven by circumstantial evidence and not by a written or even an oral agreement. That is the reason most association antitrust policies prohibit the discussion of any subject that would be illegal if there were an agreement.
For example, it is illegal for competitors to agree on future prices. Because the agreement is often proven by circumstantial evidence, most trade association policies prohibit the discussion of prices.
Similarly, what restrains trade is not always clear. Therefore, to avoid the risks of litigation, most association policies prohibit some activities that may be perfectly legal.
Coverage of Law
The Sherman Act applies to individuals, including individuals affiliated with the League and with member orchestras.
Many people indicted for antitrust violations are “good citizens” who participate in community activities and are the type of people you would like to know. Most often they believe they are innocent of any wrongdoing.
The penalties for violation of the Sherman Act can be severe. They include prison terms and fines.
Application of this Policy
Questions about interpretation of this policy should be addressed to League staff members who have access to antitrust counsel. Some initial answers to frequently asked questions about interpretation are attached.
Frequently Asked Questions about the Application of the League Antitrust Policy
The following questions and answers are intended to promote understanding of the application of the League’sAntitrust Policy to individual behavior in League-sponsored meetings (formal and informal) and on League facilitatedinternet discussion groups. It is not intended to be proscriptive for behavior outside the League environment, although it may be instructive and may stimulate orchestras to seek individual legal counsel.
Q. In order to comply with Intermediate Sanctions and immigration legislation, I need to know industry norms for compensation and benefits of administrative and other employees not covered by collective bargaining agreements. How can I learn this information?
A. Actual salaries and benefits for individual positions should not be shared in oral or written form. You should participate in the League’s annual Administrative Staffing and Compensation Survey. Executive directors and board chairmen of participating member orchestras will receive a report of the high, low, and median salaries for common position responsibilities, as well as percentages of orchestras offering various benefits for a market-basket of orchestras with comparable operating budgets.
Q. During collective bargaining negotiations, our musicians often cite compensation and other contract terms for orchestras they perceive to be comparable to ours. How can I obtain this information in preparation for negotiations?
A. All of this information for negotiated contracts is available in published Collective Bargaining Agreements. The League has captured these CBAs in a searchable electronic form.
Q. Many of my musicians negotiate individual overscale agreements. How can I learn what individual musicians are typically paid?
A. You should not share in oral or written form compensation or benefits committed to any individual. If desired, the League is willing to collect this information by position (principal trumpet, section strings, etc.) and provide it to executive directors of participating member orchestras in a format and aggregation similar to that of the Administrative Staffing and Compensation Survey.
Q. In preparation for CBA negotiations, I need to be aware of approaches, strategies, tactics that have proven valuable, as well as approaches that are anticipated for application in future negotiations. I also need to know the targets my colleagues are considering for their negotiations. Is this permitted?
A. It is appropriate to share these concepts orally and in written form as long as no specific amounts or percentages are mentioned, and no statements made about positions you plan to take. Even stating that “we hope to hold the line on increases this year” would be inappropriate. In other words, it is generally permitted to discuss why-and-how type questions, but not what-and-how-much. Labor law provides some level of discussion where a “commonality of interest” exists. League meeting groups are too large and diverse to qualify for these provisions, and therefore “multi-employer bargaining” or “coordinated bargaining” would not be appropriate in a League environment. However, negotiations such as multi-employer Electronic Media Agreements which affect the entire orchestra industry may be discussed online and in meetings.
Q. Am I permitted to discuss other orchestra’s experiences with guest artists in my price range?
A. You may share orally or in written form qualitative information about a guest artist’s engagement with your orchestra, but you should not share the fees paid to the artist. In order to determine if the artist is in your price range, consider the financial capacity of the source of the information. Do not share actual fees paid or contemplated.
Q. Regarding ticket and product prices, knowing how prices have been changing helps me to understand trends. I need to know how concerts are packaged and priced; I need to understand the effectiveness of discounting strategies. Are these conversations permitted?
A. The sharing of historical ticket prices is appropriate and meaningful, as they give evidence of strategies, trends, approaches, etc. Discussion of pricing strategies is permitted as long as no actual prices, or percentages, or future intentions on price are mentioned. Even though most orchestras are not in direct competition with one another, discussion of future pricing has been challenged as an attempt to restrain trade within an industry.