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Jeff Pash promises victory in American Needle, says it won’t affect CBA talks

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.

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6 Responses to “Jeff Pash promises victory in American Needle, says it won’t affect CBA talks”
  1. thecrazytomato says: May 24, 2010 11:44 PM

    Just like any big company. They are always trying to find loopholes. We can do this because we are x. Then when X actually becomes a problem with a different scenerio, then they claim they are Y and X doesnt count.

  2. OORashad says: May 24, 2010 11:50 PM

    So when the NFL says something clearly wrong, you “respectfully disagree” but when it’s DeMaurice Smith and the union that says something off base, the union becomes “unglued.” Interesting

  3. Bob Loblaw says: May 25, 2010 12:37 AM

    Florio, I respectfully, and completely, disagree.
    1) Pash and Levy are lawyers for the NFL, as you know, they are bound to act in the NFL’s best interests. The NFL’s best interest is to be declared a single entity on economic AND labor issues; therefore, when specifically asked about the NFL’s stance on the issue, Levy had to give that answer. However, the fact that a Justice raises an issue in oral argument does not mean that it is at issue in the case. It’s a hypothetical, so, it means nothing. It’s common knowledge that the NFL ultimately wants MLB’s absolute antitrust exemption.
    2) “American Needle wasn’t directly about labor.” It’s not at all about labor. You are missing the fact that the NFL, in reality, will settle for an antitrust exemption on economic issues, like hat licensing, and not labor issues (which would never happen).
    3) “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…”
    This is wrong. If the union decertified, they would bring a collusion claim against the teams. That is a labor law issue. Regardless of the outcome in American Needle, the NFL could argue that it is a single entity since Needle was an economic issue and collusion is a labor issue. However, since that issue was argued in 1987, it probably wouldn’t work. Regardless, it has nothing to do with this case.
    4) The league doesn’t lose anything from it’s arsenal of weapons against the players, the lower revenue teams are losing their arsenal against the bigger market teams. That’s the issue. However, the logic in assuming that anyone LOSES anything, when the NFL lost an exemption it never had is confusing. I mean, this was a 9-0 decision, I think DeSmith and the League’s attorneys are savvy enough to know the NFL had no chance.
    5) I’m pretty sure you, not the NFLPA, “is making way too much out of the decision.” I hope you adopt a more pragmatic demeanor when discussing this case on PFT.

  4. pancho smith says: May 25, 2010 6:20 AM

    Each player signs with an Agent (not the NFLPA) who they pay (how much?) to negotiate on their behalf. Then they pay dues to the NFLPA? How much do they pay? Is it possible that the NFLPA is purely a puppet organization for Agents, who are a very powerful, largely unseen force in the sport?
    Hey Florio, how about some reporting on how Agents structure their deals with players and the real impact of Agents on the sport? You’ve written before on some interesting Agent conflict of interest situations. Do Agents have an incentive to keep their guys playing, and if so, how did the economics for last-year’s SF hold-out Crabtree work for his Agent Eugene Parker, for example?

  5. DirtDawg55 says: May 25, 2010 7:29 AM

    Here’s the rub facing the union. On the one hand, allowing the NFL to act as a “single entity” that is exempt from Section 1 of the Sherman Act, would allow the NFL to negotiate all agreements, licencing and contracts even if the end result was to drive up prices. This is ultimately a good thing for the union because under the current bargaining agreement they share in those higher revenues.
    On the other hand, allowing the NFL to act as a single entity could mean the NFL is not subject to collective bargaining rules either and can impose its own labour rules. That’s the part that scares the union to death, which is why they support the legal argument that the NFL is not a single entity.
    Their challenge though is no matter what the courts say the NFL will play hardball and get Congress to give them an exemption, just as they already enjoy for TV contracts. They are allowed to negotiate those as a single entity even if it means higher prices to consumers.
    Ultimately this is all about how the NFL will get what it wants – either through the courts or through the back halls of Congress. It is not about who is right or wrong.
    Mark it down – the NFL does not ultimately lose here. It will get what it wants because its owners have more political power than its players. Beginning, middle and end of story.

  6. lawdjayee says: May 25, 2010 9:33 AM

    Stevens took great pains to state that the “single entity” position could not be used for apparel merchandising, but could possibly be used for other kinds of claims. SCOTUS’s decision is very narrowly framed and explicitly leaves other areas where the league could claim (and might prevail) that it is a single entity. That is, Florio’s wrong here.

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