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Single-entity defense remains firmly in play for ongoing labor fight

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.

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10 Responses to “Single-entity defense remains firmly in play for ongoing labor fight”
  1. The Real Shuxion says: Feb 5, 2010 8:31 AM

    If this goes to congress I will only watch IF Robert Byrd gets a chance to ask questions to Smith and Goddell.
    Byrd has some of the most enlightening quotes in US congressional history such as:
    “Genitals….dangleing…from their bodies.”
    “Ted……Ted…….I love you.”
    And the ever informative:
    “……………ZZZZZZZZZ”

  2. GoBrowns19 says: Feb 5, 2010 8:41 AM

    Can’t they just do scab games again? I actually kindof enjoyed those…and it would probably even get more notoriety during a recession. You get 53 guys that are just thrilled to be there to play for the city where they probably live or have some ties…hell, I’d watch those games. It would be like “The Replacements”. Maybe we can find a Falco to play QB.

  3. Ollie says: Feb 5, 2010 8:43 AM

    The league owners and players both know that they have the best thing going in sports. The most popular and most money making business in sports. They must even know that they are taking a chance of hurting this gold mine that they have. Yet it is not enough. Greed will not let them be satisfied with what they have, even when the rest of the working people (that support them by the way) are suffering. Greed and selfishness will ruin them, just like wall street and big business ruined our economy. The heck with all of you million dollar making owners and athetes with your God blessed talent to make millions just to play a game that you love.
    You could care less about the fans that actually have made you what you are .

  4. Caldon says: Feb 5, 2010 8:44 AM

    Why doesn’t the league (or sports leagues in general) which rely on uniform rules for all clubs within that league receive an exemption from any anti-trust lawsuits just because there isn’t a union.
    Clearly a league needs uniform rules in order to fairly compete between teams. So why not give them an exemption on those areas and still apply the whole not a single unit in others areas if needed. This just doesn’t make sense to me that a league needs a union in place in order to establish rules such as free agency and player movement between teams.

  5. Pack_Attack says: Feb 5, 2010 8:53 AM

    major league sports will not see the growth they saw in the 80s and 90s for a long long time. The numbers going forward are going to change dramatically. I would settle this quickly and get ready for major changes in their biggest sources of revenue for the foreseeable future.

  6. 8man says: Feb 5, 2010 9:05 AM

    Single entity? Hmm. Is all revenue equally shared among all teams? And are all expenses equally distributed among all teams?
    What’s the model they are trying to use? One such as McDonalds where each owner has a franchise but must follow the rules of standardization from head quarters?
    There may be some big holes in this argument. And I understand that this theory must hold up if they are going to continue to justify the salary cap. The league has been immensely more entertaining since they put that into place. There is empirical evidence to support that with the number of teams still vying for playoff spots in December and the relative competitiveness of the Super Bowls in the last 10 years.
    And I agree with Caldon above, why would anti-trust laws apply to something this small when the average compensation puts every player into 1st percentile in income and each team essentially selects their roster on an annual basis?
    Maybe a lockout would be good. Players, you are all fired! If any of you want to come and play under a certain set of rules established by the owners, great. For those who don’t, get a job with what you learned in college or go play in the CFL.

  7. smashmouthd says: Feb 5, 2010 9:20 AM

    I think its fairly clear that the owners had planned this out years ago, back when the last CBA was agreed to and they had to concede so much to the NFLPA.
    They weren’t prepared financially then to have a battle of the magnitude that is coming, but now they are.
    The NFLPA/Union would have been wise to concede some of their gains back to the Owners in return for continued employment and increased salaries.
    The PA should have been especially willing to give in on the rookie contract issues, but here is where it is clear that the Agents have influence where they should have none… the current rookie payouts does nothing to help the veterans who have earned their way, nor does it help struggling franchises that need bargain talent to make them competitive, not expensive busts which keep them dwelling at the bottom.
    Lastly, they picked a terrible representative, the Union wanted a pitch man to sell their point to America and get people on their side, I’m not sure they could have picked a worse person than Smith if they had tried.

  8. Hap says: Feb 5, 2010 9:38 AM

    It’s gonna get uglier and uglier. There’s not enough booze in So Beach to make that situation pretty.
    They better get after it soon or else.

  9. Magnakai Haaskivi says: Feb 5, 2010 10:22 AM

    Why does a league need uniform rules for equal competition? Just because the NFL has licensed everything to Reebok doesn’t mean that Adidas couldn’t start making perfectly good apparel in a heartbeat.

  10. ch19079 says: Feb 5, 2010 10:43 AM

    The NFL can not simply claim to be a single-entity one day to win a court case, then claim not to be a single-entity on the next to win another court case.
    Either they are or they arnt.
    They already stated in court that they are, and won that case. So they are a single-entity. However, they will be wishing they claimed the opposite in the upcomming months.

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