NFL labor: Courts could tilt leverage in coming weeks

Washington Post Staff Writers
Sunday, March 13, 2011

NFL players' decision to dissolve their union Friday so they could file an antitrust lawsuit against the NFL is as risky - and potentially rewarding - as a fake punt with the game on the line.

Experts agree that it leaves both labor and management vulnerable to a game-changing ruling on the labor stalemate from an outside arbiter - either a federal court or the National Labor Relations Board.

While the legal machinations could drag on for months or even years, two major issues should be addressed in coming weeks. The outcome will not necessarily end the dispute, but it could shift overwhelming leverage to one side.

"What happens in the next few weeks will determine whether the ball is on the NFL players' side of the field, or whether they are backed in their own end zone," said Marc Edelman, a professor of law at Barry University law school in Orlando.

The NFL's first work stoppage in 24 years went into effect Saturday, just after the labor deal between team owners and players expired at 11:59 p.m. Friday. The players dissolved their union Friday afternoon, filed their antitrust lawsuit and asked a federal court in Minneapolis to lift the lockout.

Legal experts say the union took a huge risk when it voted to decertify the union just before the collective bargaining agreement expired Friday. If the NLRB agrees with the owners that the decertification is a sham, conducted simply to gain bargaining advantage, the players could be forced to return to the table with their suit jeopardized and legal strategy in shambles. The owners already have filed a complaint with the NLRB alleging just that, and several experts said they seem to have a compelling case.

"Frankly, I'm surprised the union did this," said Clark C. Griffith, a former executive for the Minnesota Twins and an attorney who handles antitrust matters. "Because it changes the entire" dispute.

But if the decertification is upheld by the NLRB, the players may gain a sudden edge. History shows the owners likely will face an uphill battle as the players press forward with their attempt to win a preliminary injunction to lift the owners' lockout. The players argue that the lockout violates the nation's antitrust laws in the 52-page class-action suit they filed Friday.

Sports leagues historically have struggled to defend themselves against various antitrust claims; the NFL players claim in their latest suit that owners have violated antitrust law through the lockout, the "Franchise Player" and "Transition Player" designations, and through the college draft. All of those, the players contend, restrict their ability to earn maximum pay for their skills.

"This may be the most complex labor battle in American sport history," said Robert Boland, who teaches antitrust and labor law at New York University. Both sides "are looking for an advantage that becomes a game changer."

In a lengthy written statement issued Saturday, the NFL said "the union's abandonment of bargaining has forced the clubs to take action they very much wanted to avoid" in locking out the players. The league also urged the players' side to resume negotiations immediately under the supervision of federal mediator George H. Cohen, who supervised 16 days of talks before the stalemate.

The former NFL Players Association, now technically a trade association for the players because of the decertification, declined through a spokesman to respond.

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