NFL labor: Courts could tilt leverage in coming weeks

By Mark Maske and Amy Shipley
Washington Post Staff Writers
Monday, March 14, 2011; 4:36 PM

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.

Washington Redskins offensive lineman Artis Hicks said Saturday he's "pretty sure things will get worked out in time for" offseason practices.

"It's something that none of us wanted to happen but sometimes you have to go to extreme measures to get the attention of others and that applies for both sides," Hicks said. "So until things get sorted out I'll be working out and turkey hunting down here in Tennessee."

The talks ended with the league and union unable to resolve differences on key financial issues, primarily how to split the sport's approximately $9 billion in annual revenue, and the union's demand for detailed information about the teams' finances.

The union rejected a league offer Friday under which the owners would have been credited with an additional $325 million annually for expenses - down sharply from the additional $1 billion they had sought - before the players' portion of revenues are calculated.

Some experts believe the federal court is likely to stand down while the NLRB examines the decertification issue early this week. If the players can survive the NLRB's scrutiny, the NFL will face the biggest challenges. In the absence of a collective bargaining agreement, antitrust claims often are successful in court, because salary caps and restrictions on player movement can be described as price-fixing and market restraints on competition.

The district court in Minnesota, which has supervised the league's collective bargaining agreement since 1993, has ruled against the NFL in a few recent cases, prompting the owners to allege in past legal filings that the judge in those cases, David S. Doty, is biased toward the players. Though Doty was not assigned to the case - it landed on the docket of Patrick J. Schiltz - experts say it likely will make its way in front of his bench because of his familiarity with the issues.

"It's imperative from the teams' perspective that they get a ruling stating that decertification is a sham, because they could have antitrust problems," Edelman said. "If there is no NFLPA in place, a lot of the conduct that takes place in the NFL under the rule of reason violates [antitrust law]."

Even if the NFL loses in district court, it would still have the right of appeal to the U.S. Court of Appeals, and league officials like their chances there. They also would be expected to request a stay of any district court ruling until the matter is heard on appeal. Which means that even if the players succeed in winning an injunction against the lockout, a stay combined with a successful appeal could prevent it from actually being lifted.

If the lockout were lifted, the sport would reopen for business and the league would have to establish work rules. It almost certainly would reinstate the ones used last season, which was played without a salary cap in the final year of the labor agreement that just expired.

As long as the lockout is in effect, teams are prohibited from signing players to contracts and trading players. Coaches cannot have contact with players. The sport's drug-testing program is not in effect. Players would not be paid next season if the lockout remains in place.

The full legal process could take weeks or months.

"Instead of arguing about salary caps, extra games and player benefits, you're going to be arguing about discovery motions," Griffith said. "Who wants that?"

Staff writer Mike Jones contributed to this report.

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