Peter King of Sports Illustrated has been spending his time in Washington, along with the horde of media covering the labor negotiations. And with Peter presumably working the phone line and the text messages and the e-mails non-stop, like I saw him do during every Sunday of the 2010 football season, it’s no surprise that he’s in position to provide some inside details about how things could play out.
King reports that, if the players choose to decertify and sue, the new league year — along with free agency — could begin by the middle of April.
The process would commence with a decertified union asking Judge David Doty, who presides over the CBA that arose from the settlement agreement reached in the ’90s-era antitrust lawsuit, to block the league from locking out a non-union workforce.
Writes King: “If Doty granted injunctive relief, he could likely rule that the league’s last work rules were still applicable, or he could simply allow the NFL to institute a set of rules of its choosing. But it’s a virtual certainty the NFL would appeal the injunction. . . . If the injunction survived the appeal process, the 2011 league year would start and the rules would include free agency and the ability to trade players.”
We’ve got a slightly different assessment of the situation. The league year, in our view, would start even sooner than the middle of April, and possibly by the end of March.
With 500 players having their ability to become free agents delayed and all players soon missing out on the ability to prepare for the next season at team facilities with the security that comes from knowing that a freak injury that knocks the player out for the season would still result in the player getting paid his salary for the year, the union will move immediately for a “preliminary injunction” aimed at forcing the league to start the next league year ASAFP while Judge Doty resolves the claim on its merits. Given that the prospect of 32 separate businesses (hello, American Needle) coming together to prevent non-union employees from working would amount to a pretty clear violation of the federal antitrust laws, Judge Doty would be inclined to force the league to conduct business as usual, given the “irreparable harm” that would result to players who are prevented from signing new contracts and from working out in team headquarters instead of on their own.
Coupled with the other factors that courts consider when issuing an injunction (including the public interest), the league could be back in business less than a week after the paperwork lands in Judge Doty’s chambers.
After issuing a “preliminary injunction,” Judge Doty then would consider the parties’ positions on the merits, considering written memos and possibly taking testimony before likely deciding that the owners of 32 different businesses can’t freeze out their employees, most of whom have contracts for at least the coming season.
Though the league definitely would appeal the decision to the U.S. Court of Appeals for the Eighth Circuit, Judge Doty most likely would extend the injunction until the appeal is resolved. In the StarCaps case, for example, the league has been prevented from suspending Vikings defensive tackles Kevin and Pat Williams for more than two years, even though the players have lost at the trial-court level and at the intermediate appellate level in the Minnesota state court system. (The players can still appeal to the Minnesota Supreme Court.)
So while we’ve been hearing gloom and doom from the union about a lockout for well over a year, the reality is that the union’s approach prevents a lockout, ultimately forcing the league to decide whether and to what extent rules regarding the draft and free agency will be applied across 32 separate businesses, knowing full well that an antitrust lawsuit will be coming once the rules are put in place.
Here’s the thing that still confuses us. With the union possessing an apparent silver bullet to stop a lockout, why has the union spent so much time and effort scaring the fans into thinking a lockout is coming? The “let us play” mantra rings hollow when considering that the players have the ability to force their way onto the field.
Unless it was all an elaborate P.R. ploy aimed at building sympathy for players facing a lockout when in reality they weren’t (or perhaps at getting the players to take the situation seriously), the union’s failure to swing the decertification-and-injunction stick much sooner than March 2011 tells us that they don’t really want to do it.
Perhaps the union fears that the litigation approach will at some point fail, putting them in far worse position than they are now. As we pointed out over the weekend, the American Needle case contains language that could help the league prevail in an antitrust claim, if the court system concludes that a college draft and the current free agency system represent limitations on competition necessary to preserve on-field competitive balance.
At a time when players and their agents are apparently becoming intoxicated by the possibility of applying the war paint and firing up the troops and unleashing hell (Gladiator style, not Mike Tomlin style), all players and agents need to think about why it is that such an apparently easy way to block a lockout wasn’t wielded long before the union spent months publicly — and needlessly — fretting about a work stoppage.