The National Labor Relations Board will issue a complaint against the National Football League seeking more than $20 million in wages and incentives that striking players lost when they were barred from playing the weekend after the NFL Players Association ended a 24-day strike.
NLRB spokesman Dave Parker said yesterday the complaint has been authorized by NLRB general counsel Rosemary M. Collyer and that he expected it to be issued "sometime next week."
A number of other charges and countercharges made by the NFLPA and the NFL Management Council, the owners' bargaining agent, are still under NLRB investigation, Parker said. In another development, the NFLPA said a record 527 players -- including 220 starters, 37 Pro Bowlers and 14 Washington Redskins -- will become free agents Feb. 1.
The union will seek an injunction during a Dec. 30 hearing in federal court in Minneapolis on its antitrust suit against the NFL to prevent the league from imposing the current free agency system of right of first refusal/compensation on those players.
Even if no injunction is granted, if those players are forced to sign with their old teams at lower salaries than they could command as free agents, the league could be liable for treble damages, as are awarded in all antitrust cases, should the players prevail in court, NFLPA officials said.
Also, at the Dec. 30 hearing, quarterback Kelly Stouffer, the St. Louis Cardinals' No. 1 draft choice and the only unsigned first-round pick from the 1987 draft, will ask Judge David Doty to include him in the antitrust suit, adding a class for draft choices.
In the first legal opinion in the aftermath of the strike, the NLRB ruled that the league discriminated against the striking players in violation of the National Labor Relations Act by setting different deadlines for striking and nonstriking players to report and be eligible for games played Oct. 18 and 19, Parker said. Striking players had to report by 1 p.m. Wednesday to be eligible to play.
"Nonroster players could be signed as late as Saturday or Monday, respectively, to play in the Sunday or Monday games," Parker said. "The rule expressly distinguished between the two groups based solely upon their participation in the strike and therefore discriminated against the strikers.
"The owners effectively deprived each of the strikers of one-sixteenth of their entire annual salary."
About 90 percent of NFLPA members stayed on the picket lines until the union ordered them back to work on Thursday, Oct. 15, one day past the league deadline for strikers to return. Although Parker declined to speculate on the amount of a back-pay settlement, using NFLPA figures of an average payroll of $858,000 per week for each of the league's 28 teams, the total pay for striking players that week is in excess of $20 million. The players also would be paid interest from the date of the violation.
The next step in the process is a hearing before an administrative law judge, likely to be scheduled in three to four months. That decision can be appealed, first to the full five-member NLRB, followed by the U.S. Circuit Court of Appeals and, ultimately, to the U.S. Supreme Court. The two sides also can settle at any point in the process, Parker said.
Dick Berthelsen, NFLPA general counsel who said at a press conference yesterday that NLRB representatives had told him of the board's intentions to issue a complaint, said the favorable ruling was certain to strengthen the NFLPA's antitrust suit.
A labor lawyer who represents a Fortune 500 company and negotiates with labor unions said the decision in the players' favor would put more pressure on management to reach a contract settlement. NFLPA Executive Director Gene Upshaw said the Management Council has declined to bargain since opening proposals were exchanged April 20, leading to the antitrust suit being filed the day the strike ended. He said he doubted the NLRB ruling would change that.
Upshaw said he met earlier this week with Jack Donlan, his counterpart on the Management Council, and "there was a restatement of positions." Both agreed there had to be agreement in three major areas -- the free agency system, pension and duration of the contract -- before any settlement was possible. Upshaw said he and Donlan likely would set up another meeting next week, but he was pessimistic on progress toward a settlement.
Once the court takes jurisdiction of the antitrust suit, and rules it a class action suit, any collective bargaining agreements on free agency and other antitrust issues must be approved by Judge David Doty and all parties to the lawsuit.
The key issue in the lawsuit is whether an exemption from antitrust laws, gained through a collective bargaining agreement, applies when there is no collective bargaining agreement. The union says it does not apply; management says it does. Among the items being challenged in the suit are free agency.
Although the first court date in the lawsuit is Dec. 30, NFLPA leaders said it may be as long as 18 months before the case goes to trial. And NFL players may be without a collective bargaining agreement for as long as three seasons, according to the NFLPA.
NFLPA officials, including Upshaw, said yesterday they are willing to wait that long if the NFL is not willing to bargain in good faith, and labor officials said the AFL-CIO has pledged as much financial aid as necessary to help the NFLPA carry out its legal battle.
The NFLPA considers the 527 soon-to-be free agents important in the eventual outcome of the case because, according to Berthelsen, if the players have to bargain under the current system and none can move from one team to another, the union will have additional evidence on its claims of antitrust violations.