During a Thursday afternoon conference call with a small group of reporters (and a guy like me who pretends to be one), NFL general counsel Jeff Pash answered a variety of questions regarding the ongoing Collective Bargaining Agreement negotiations.
At one point, one of the reporters made a reference in jest to the notion that the NFL is a single entity, as it contends in the American Needle antitrust case, which arises from the league’s exclusive apparel deal with Reebok. And so the guy who pretends to be a reporter blurted out this question: “Does the NFL contend that it is a single entity for labor purposes?”
It actually wasn’t as bad of a question as I could have otherwise asked. In the wake of the oral arguments in the American Needle case, we noticed a conflict between the statements that attorney Gregg Levy made to the Supreme Court and some of the things that the NFL has said in other contexts.
Said Pash in response to a question that seemed to call for a “yes” or “no” answer? “It’s immaterial.” (In other words, “Yes, but I really don’t want to say ‘yes.’”)
In fairness to Pash, he explained that the issue won’t matter until the labor deal expires, the union decerifies, and the union then sues the league under the antitrust laws for applying standard pay, draft, and free agency rules to a group of individuals who are no longer formally unionized.
He didn’t say whether, at that point, the league would contend that it is a single entity. But he admitted that, in the antitrust case that the members of the decertified union filed after the failed 1987 strike, the league did indeed contend that it is a single entity.
Bottom line? The wringing of hands and gnashing of teeth in which the union engaged last month occurred for good reason. Absent an appropriately narrow ruling in the American Needle case, the league will still be able to attempt avoid the only legal device available to the union if a work stoppage doesn’t work — and by all appearances the league would use the American Needle ruling as the launching pad for just such an effort.