In a Monday discussion with reporters at the ownership meetings in Dallas, NFL general counsel Jeff Pash spoke about the stunning 9-0 ruling from the U.S. Supreme Court in the American Needle case regarding the inapplicability of the “single entity” defense to the NFL.
“We remain very confident about the ultimate outcome of this litigation. I have the highest degree of confidence that when it is decided it will be decided in our favor,” Pash said.
“I don’t have the slightest doubt about it,” Pash added a bit later. “I’m as confident of that outcome as can be.”
Pash explained that today’s ruling addresses only whether the NFL can avoid liability for antitrust violations based only on the idea that the league is a “single entity.” Thus, the league could still win the lawsuit, via the more complicated process of applying the so-called “Rule of Reason,” which looks at whether any impact on the competition and consumers is reasonable and justified.
Pash also spent several minutes explaining that the ruling has no bearing on the Collective Bargaining Agreement with the union, because in his view those matters weren’t at issue in the present case.
“It doesn’t mean anything,” Pash said. “This case was never about labor. We never, ever, ever argued that this had anything to do with labor. We argued to the Court that it didn’t have anything to do with labor. And I think the Court’s opinion doesn’t address labor, not in any way, shape, or form.”
We respectfully disagree. Pash previously has acknowledged (sort of) that the NFL regards itself as a single entity for labor purposes — and he has admitted that the league raised that issue in the antitrust case filed by the NFLPA after decertifying in the wake of the 1987 strike. Moreover, NFL outside counsel Gregg Levy seemed to argue to the Supreme Court in January that, indeed, the single entity argument would be used as to any antitrust challenge.
So, yes, even though the American Needle case wasn’t directly about labor, there’s an impact. The single entity defense isn’t available, if the union were to again decertify and again sue the NFL for antitrust violations. Though the league could very well win such a lawsuit, the reality is that the silver bullet has turned out to be a dud.
Though Pash also insisted that the ruling does not create any incentive to go to the bargaining table, the league’s arsenal of weapons against the union has been diminished. We don’t expect Pash to admit it, but it’s the truth.
And while many believed that a deal between the NFL and the union would not be hammered out until the Court issued a ruling in American Needle, the challenge for both sides will be to provide the outcome with fair and appropriate meaning. For now, the union is making way too much out of the decision, and the NFL isn’t nearly giving it enough credence.
Hopefully, both sides adopt a more pragmatic demeanor when discussing the case behind closed doors.