On Wednesday, NFL outside labor lawyer Bob Batterman told the Washington Post that he believes the union wants to force a lockout, so that the union may then unleash political and litigation strategies aimed at leveraging the best deal for the players. Batterman’s remarks represent the first time a member of the league’s negotiating team publicly acknowledged a sentiment that has been floating around both 280 Park Avenue and union headquarters for nearly a year.
On Thursday, the union responded -- strongly -- arguing via general counsel Richard Berthelsen that the suggestion that the players want a lockout “is coming from outer space.”
Batterman thereafter replied, via an interview with the Associated Press. (Batterman also is scheduled to appear next Wednesday on ProFootballTalk Live.)
‘They can scoff all they want,” Batterman said. “The players may not want a lockout. I believe the union leadership and counsel want a lockout.”
Batterman then explained that the union wants to force a lockout so that the union can block the ability of the league to impose a true lockout. Which, of course, does little to persuade us that the NFL isn’t planning to impose a lockout, at some point.
“Their strategy is to try and stop us from exercising our federally protected right to lock out,” Batterman said. “It is a perfectly legitimate legal, economic weapon in collective bargaining. These guys struck twice in the 1980s. Nobody was screaming and hollering that they were against motherhood and apple pie when they struck.
“A lockout is no different than a strike, as I am sure you know. It is just a question of who is pulling the trigger. When a union wants to improve a contract, their weapon is to strike if there is no agreement. When the employer wants to improve the contract, their weapon is to lock out if there is no agreement. There is no moral turpitude involved if we get to a lockout, which may or may not happen. They have decided that instead of fighting it out using traditional labor weapons, they want to try and avoid the lockout by going through this sham decertification process and trying to bring an antitrust lawsuit to try and stop us from locking out. That is why I believe the negotiations are dragging, because they want to get to March 4 so that they can pull that trigger.”
Though we don’t want to lay out here too many of the questions we plan to ask Batterman on Wednesday, we see a huge difference between a lockout in truly private industry and a lockout (or a strike, for that matter) when it involves a multi-billion-dollar business that constitutes in many respects (including the many taxpayer-funded stadiums) a public trust. Sure, locking out the players doesn’t constitute a criminal or immoral action. But taking away one of America’s most beloved diversions, not only when the real games start but from March through August when millions start every day with a cup of coffee in one hand, a food item of some sort in the other, and a quick spin around the Internet regarding the things that their favorite team and/or the teams they hate are up to, people will become very upset, very quickly.
So why wasn’t it a big deal in the 1980s, when the players struck twice? Because ESPN was still largely a tractor-pulls-and-Tiddly-winks operation. (The first NFL contract on ESPN began in the second half of the 1987 season, weeks after the strike was resolved.) Because the Internet was still at least decade away from its arrival as a mainstream, daily source of gathering information and disseminating opinion. Because the NFL wasn’t nearly as big as it was in 1982 and 1987 as it is today.
In many respects, the NFL is a victim of its own success. It’s too big to shut down. In his heart, Commissioner Roger Goodell surely knows it. His challenge is to get enough of the owners, blinded by their individual balance sheets, to see it, too.
Even Batterman seems to realize the potential damage of a lockout, but he also seems to be intent on recommending the league to impose one, if need be.
“No employer in its right mind wants to shut down its business,” Batterman said, without mentioning the reality that employers in their right mind do it all the time. “There is damage when there is either a strike or a lockout. It is not in the employer’s interest to shut down the business. It is in the employer’s interest to get a deal which gets this industry straightened out for the next generation for the good of the fans, for the good of the players, and yes indeed, the good of the owners. Nobody is looking for a lockout. We are looking for a deal. Is that deal going to require some concessions from the players? Yes, it is going to require some concessions from the players because the balance has gotten out of whack. The owners are going to make concessions, too. We are making changes to working conditions. We have made proposals to improve benefits for the players. We have talked about structures to protect the veterans in terms of what the impact of these economic changes are. There are going to be compromises on both sides, and we are hoping to do it without the necessity of a lockout.”
In order words, they’ll lock out the players if they think they need to. And they don’t like the fact that the union has a silver bullet for blocking a lockout, via decertification of the union and the filing of an antritrust lawsuit, after the NFL imposes common work rules to 32 separate businesses.
The league doesn’t like this approach, because it reduces the league’s leverage over the players. When Batterman says that "[t]heir strategy is to try and stop us from exercising our federally protected right to lock out,” he’s essentially saying that the union has come up with a way to prevent the league from putting the players’ collective nuts in a vise and squeezing until they agree to whatever terms the owners are proposing.
Like the league’s right to impose a lockout, the union has a right to decertify and file suit. And the league has the right to attack the decertification as a sham and to defend the antitrust lawsuit, which could be a very weak antitrust lawsuit, if the owners carefully craft work rules that allow for free movement between teams after individual employment contracts expire.
Here’s the bottom line. The generation of labor peace that soon could be ending was spawned by a strike, a decertification of the union, an antitrust lawsuit, and a negotiated settlement of the antitrust lawsuit that became the first version of today’s Collective Bargaining Agreement. In other words, a deal eventually was done. And football continued while the legal wheels churned over a period of multiple years.
The league apparently would prefer to pull the plug on the game, since it will likely get the owners a better deal by forcing the players to cry “uncle” after missing a couple of game checks. The union’s strategy (in Batterman’s view) consists of finding a way to continue to let the players work -- and thus for the game to continue -- while a deal is worked out.
When considered that way, it should become very easy for the fans to pick a side in this fight. One approach potentially results in a period of no football. The other approach results in no period without football. Though the league may argue that the football won’t be as compelling until a proper financial compensation system is put in place, we’re reaching the pinnacle of one of the most compelling football seasons in league history despite the fact that the labor dispute has been reaching a boil in the background.
So, basically, at a time when the owners are thinking about themselves and the players are thinking about themselves, it’s appropriate for the fans to think about themselves. The fans, in our view, should support the path that results in the continuation of football, and then to leave it to the stewards of the game to find a way to make that happen through the negotiation of an agreement that is fair to all sides, either at the bargaining table or after decertification of the union.