Our prior decision in Leonard v. Clark is instructive. 12 F.3d 885 (9th Cir. 1993), as amended (Mar. 8, 1994). Leonard involved a collective bargaining agreement that restricted a union's ability to "specifically endorse[ ] or sponsor[ ]" legislation that would benefit the union's members.

Brentwood in this case gave up its right to engage in certain types of speech, and may not assert such a right now. See Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (affirming the district court's decision not to reach the issue of whether a labor union's free speech rights had been violated where the district court had first determined that the union waived its First Amendment protections in a collective bargaining agreement). Brentwood in short gave up its right to speak in violation of TSSAA's game rules (including its anti-recruiting rules) as consideration for access to TSSAA leagues and tournaments, and to benefit from TSSAA's enforcement of its rules against competitors.

However, any such waiver must be made "voluntarily, knowingly, and intelligently." Marsh, 105 F.3d at 111; see Lake James Community Volunteer Fire Dep't, Inc. v. Burke County, 149 F.3d 277, 280 (4th Cir. 1998), cert. denied, 525 U.S. 1106, 119 S.Ct. 874, 142 L.Ed.2d 775 (1999); United States v. Local 1804-1, 44 F.3d 1091, 1098 n. 4 (2d Cir. 1995); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993); Erie Telecommunications, 853 F.2d at 1094; Sambo's Restaurants, 663 F.2d at 690. Moreover, the waiver must be established by "clear and compelling" evidence.

Thus, in Leonard v. Clark, we held that individual firemen did not have standing to challenge a portion of their union's collective bargaining agreement because the provision at issue "by its plain language applie[d] only to the Union and not to its individual members." 12 F.3d 885, 888-89 (9th Cir. 1994); see also Getman, 328 F.3d at 1095 (indicating that a plaintiff has not established an injury in fact where the statute "clearly fails to cover [the plaintiffs] conduct" (quoting Majors v. AMI, 317 F.3d 719, 721 (7th Cir. 2003))). Likewise, we have held that plaintiffs did not demonstrate the necessary injury in fact where the enforcing authority expressly interpreted the challenged law as not applying to the plaintiffs' activities.

Although important First Amendment concerns are raised, the court finds it unnecessary to address that issue. See Davies v. Grossmont Union High School Dist., 930 F.2d 1390 (9th Cir. 1991); Leonard v. J.E. Clark, 12 F.3d 885 (9th Cir. 1993). In an earlier opinion, the court denied UMWA's Motion to Dismiss and found that Pittston stated a claim for breach of contract. Pittston Coal Group, Inc. v. International Union, United Mine Workers of America, No. 93-0162 (W.D.Va. filed July 27, 1994).