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League year could start long before new CBA is reached

DavidDotyGetty Getty Images

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.

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14 Responses to “League year could start long before new CBA is reached”
  1. goodjet says: Mar 10, 2011 9:27 PM

    OK —- But —- The thing I’m really trying to figure out these days is — umm —- Just when did I enter law school anyway —– I know one thing though — I’m not going to pass the bar, that’s for sure —- I’m heading right into the next one and I’m not coming out —- On my feet anyway —- Jeez, I’m so beyond sick of this Freaking Crap

  2. vbe2 says: Mar 10, 2011 9:32 PM

    What would prevent the league from just not scheduling any games?

  3. tblitz25 says: Mar 10, 2011 10:06 PM

    The question isn’t why the NFLPA has spent so much time “Scaring” fans, the question is why has the media spent so much time scaring fans. The NFLPA and the owners have both known for awhile that this was an option . The media just needs a story to peddle in order to keeps fans interest during this process and time of the season. Isn’t interesting that ESPN’s NFL Live is the only sports show that is aired at the same time all year around even when it’s sport isn’t in season? I have no doubt both sides want to get something done but either way their will be football next season. There are too many teams/owners that are committed to improving their teams to allow the few that are in it for money to spoil free agency and the ability to trades.

  4. chatham10 says: Mar 10, 2011 10:20 PM

    As Kraft of New England said, get the lawyers out of the room and let business people decide this.

  5. drslipdadic2me says: Mar 10, 2011 10:27 PM

    Here is a novel idea. You’ve extended the deadline several times. You are in agreement on some issues & some issues can be eventually agreed upon if the two sides continue to meet & negotiate in good faith.

    Extend the deadline to April 15th, hash out specific Free Agency, Trade, & Rookie Wage Scale issues first & foremost. That way, teams & players can operate the league in general under the new guidelines while the two sides continue to negotiate the CBA with the current mediation team.

    Next, come to some type of an agreement with the financial statements. We ALL know that there is too much information to go through with 32 teams if you’re wanting to go from head to toe. So come up with something that will make both sides comfortable revealing. I don’t think the players need everything they are asking for, moreso just trying to show power over the league.

    Next, negotiate the 18 game season, if it can be done. If not, drop it.

    Based on the findings, negotiate the remainder of the profits between the two sides. Would the Union balk at the idea that they don’t need to dig through every little piece of financial information? Certainly, but from the side I’m viewing now, the League, Owners, & Union addressed the league specifically & told them they would work hard to finalize a deal as soon as possible to bring football to us in 2011. As of right this moment, what the Union is gearing up for is decertification. The Owners are opening the books, they are willing to go further than ever with the information their providing the players, they are committed to getting the deal done. The NFLPA is breaking their commitment to the fans by what looks like an end to negotiations come tomorrow.

    In the grand scheme of it all, I think both sides continue to underestimate the perception they are giving the fans & the repercussions that will follow. They need not look any further than the NHL & MLB. Fan participation is still down compared to what it was before money caused a stoppage in play. Fans don’t feel sorry for people who are greedy & fighting over millions. Hell, for an example, look at how many Bengals fans have left that team because their money does not equate to the best possible team that Mike Brown can field. It equates to more money in his pocket. They need to realize before acting, the working man has no pity!

  6. dldavidlong says: Mar 10, 2011 10:42 PM

    i hope the union does decertify. then their will be no lockout and the nfl will continue. what do i care who sues and who gets what amount of money.

  7. kernelreefer says: Mar 10, 2011 10:55 PM

    I never thought I’d see the day when I could legitimately say: “Huh. Looks like taking this to Congress would be faster”

  8. commentblocker says: Mar 11, 2011 12:33 AM

    De-certification is a sham, we all know this. Tomorrow, no deal and then lock-out. Union “de-certifies”. No preliminary injunction because no irreparable harm. Union loses on de-certification sham because the Judge has evened the playing field, both signs will start feeling intense pain this summer. A deal gets done between the Union and owners in late August or September – we might miss a couple of games but no replacement players. Yes, the league is being stubborn about financials but its hard to blame them when Smith demonstrates no concern over Green Bay’s awful profit numbers.

  9. jc1958cool says: Mar 11, 2011 7:48 AM

    if decetification is a sham, then so is a lockout!
    why should a team have to lock guys out if THEY don’t want to?

  10. miamimike1 says: Mar 11, 2011 9:56 AM

    I admit I really do not understand totally whats at stake here with a possible lockout. I mean this in terms of what really do each of the sides want or what do they really need?

    Football is to me the greatest sport to watch.It saves men form having to spend the day at the crafts store with their wife or girlfriend as well. When football was first played it was more about the love of the sport. As time grew and the sport grew along with media growth it became about young men becoming rich and having their face on TV. The owners who bought these teams in the beginning gambled their fortunes on starting and building a team. The players came to work for these owners with a chance to play a sport they loved and just maybe one day to make a living. Somewhere along the way the employee decided to tell the owner how things would work. I am lost where a owner gives up control of his business by allowing employees to get paid such crazy salaries? Where did it become impossible for a player to actually live on say 5-10 million a year max as to 12-20 million a year. Where else do you see employees tell owners without us you have no product for a product that is not a necessity?
    Where do you see employees tell their boss I have the right to see your books and see what you really make in earnings? These young men who play this game now feel they are entitled to gross amounts of money because they play a sport. No player who never has played a pro down is entitled to 60 million with 40 million guaranteed. Then every year the next rookie deserves a 4% increase just because? The owners allowed this to happen along with fans. Lets allow players to learn how to survive on 5- 10 million a year MAX to play a sport. Give them even a better retirement and medical. They earn medical and retirement they do no earn the right to 60 million just because they want to be rich and famous. Become rich and famous after you earn it not because you feel you are entitled to it. If you feel its unfair dont play football. You got a free education in college use that degree in the real world an earn a real pay wage and see after earning 40 – 100,000 dollars if you can then play Pro Football for just 5-10 million a year MAX. Please don’t tell the fans who come see you play 5million a year is just not enough to feed your family and you just cant make it unless you get 20million. Owners you also need to remember it is your business you are the boss you hire these employees and you allowed this because you are greedy just the same. When it comes down to it the owners and players work for the fans. The fans need to say enough and the fans need to have a lockout for a year. Lets see if the owners and players come to a sit down with us and try to negotiate better ticket and concession prices. Just once let the fans get together and say enough without us no one gets paid. We spend the money so we should help decide.

  11. vetdana says: Mar 11, 2011 10:44 AM

    I see a potential flaw in your argument..assuming that the legal “train” heads down the track in the manner you propose…you are not taking into account the court of appeals possible negative decisions and timelines, which have the potential to derail your whole legal tresties.

  12. hlmatty1 says: Mar 11, 2011 11:14 AM

    Please stop writing about things you know nothing about. First, in almost every state, a preliminary injunction — as compared to a temporary restraining order — requires an evidentiary hearing before instituted. So, the first issue to be resolved, which your legal analysis does not even bother to mention, is whether the decertification is a sham. Since that issue has already been brought before the National Labor Relations Board (when the NFL filed its claim of unfair labor practices against the Union), they might have to decide the issue first. Second, even if the Court gets it first, who says the case goes to Doty? The Union would have to file a new antitrust action since they are claiming an entire new violation and I expect that no way will the NFL allow Doty to be it. Third, the first thing the NFL will do is ask for any and all correspondence, emails, memos, etc. from the Union re decertification which will lead to the following questions: if the players really wanted it, why did they not decertify last year when the vote was taken? And who is paying Smith and the lawyers? And why did the player last week say they are decertifying and then not do so?

    Once, all the evidence will show that the decertification was a sham — and a violation of Federal Labor law — there will be no injunction, the lockout will continue, and the Union would have to negotiate in a proper manner. There will also be no league year, no free agents, and a bunch of NFL players who will never again see their big paychecks again merely because they want to protect some rookie QB ho wants $40M guaranteed.

    I suspect you won’t post this one either. Please stick to things like which player got a DUI and leave the law to the professionals.

  13. whoknowsnothing says: Mar 11, 2011 12:21 PM

    Man, how many people read this article?

  14. sandyf79705 says: Mar 11, 2011 2:31 PM

    First off, the union will submit decertification in Judge Doty’s court so he will have jurisdiction over the process. As to the temporary injunction, it is more than likely based on Doty’s ruling last week on the TV contracts that he will grant a temporary injunction. Could it not happen, sure, but if you have read his ruling, and I have, it suggests that not only will he grant a temporary injunction but could grant much more.

    Second, if the injunction is granted there will be a league year and games. The NFL will be forced to institute rules to cover the draft and free agency or Doty’s could impose the rules from 2010. It has been done before.

    Third, NLRB has not ruled for or against the NFL on if decertification is a sham or not and if you base their time for ruling, that might not happen for up to two years.

    I do favor one side or the other, they are both making gross amounts of money but saying Doty would not get the case is flat out not true. He will be the key figure if this goes to litigation.

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