Antitrust lawsuit alleges that NFL has waived “sham” defense to decertification

While trudging through the 52-page complaint filed in the U.S. District Court for the District of Minnesota by a group of players including three quarterbacks who have won five Super Bowls among them, I had to press pause at page 19 and share with PFT Planet language that, if accurate, prevents the NFL from arguing that the decertification of the union was a “sham.”

If the NFL were to prove that the decertification was a “sham,” the league would be able to lock the players out, since the antitrust laws would not apply.

Paragraph 45 of the civil complaint explains that, when settling the Reggie White antitrust lawsuit in 1993, the league “insisted on the right to terminate the [agreement] if the players did not reform a union within thirty days.”  To get that provision, the NFL agrees that, “if a majority of players decided to end their collective bargaining representation upon or after the [agreement’s] expiration,” the NFL would waive the right to argue, among other things, that the decertification was “a sham or otherwise ineffective.”

In other words, if the players’ allegations are accurate, the NFL can’t use the “sham” silver bullet to block decertification.  And that makes the players’ lawsuit a lot stronger, increasing the likelihood that a lockout will be blocked and we’ll have football in 2011.

60 responses to “Antitrust lawsuit alleges that NFL has waived “sham” defense to decertification

  1. Has anyone thought about what this means for the cheerleaders? I think that any agreement should have, built in, a requirement that tghe networks cannot block the commercial-cut cheerleader shots with any sort of corporate logo. I wanna see them hotties! Let’s address the important issues, by golly!

  2. Good luck drumming up public sympathy behind Snotnosed Whiteys and the Seven Mental Midgets.

  3. in those days they werent dealing with a sham of a union head, however.

    duh has no intention of stepping aside at all. his only intention was to go to a court he had the sympathies of.

    so, it’s all a sham.

  4. Didn’t the entity formerly known as the NFLPA work tirelessly during the 2010 season to get the players to agree to decertify, even before real negotiations began?

    How does that mesh with “if a majority of players decided to end their collective bargaining representation upon or after the [agreement’s] expiration,”

    It seems pre-meditated to me, especially since they filed to decertify, you know, before the actual expiration of the CBA since the CBA doesn’t even expire for a few more hours.

  5. I wouldn’t get too excited – its clearly the strategy from day one to decertify – as evident with their actions leading up to and through today

    D Smith had no intention of neogiating this out – as evident by the simple fact he gives his final briefign to players – then he goes back for the final 3 hours of neogotiations

  6. The owners leverage is a lockout. The players’ is to de-certify. That’s pretty simple logic.

  7. Key phrase “…upon or after the agreement’s expiration”. Mr. D did not wait until expiration before he filed decert. Expiration by contract is midnight. Ergo, the “sham” arguement is fully and legally justifiable. Moving forward, an appellate court will rule that a lockout is NOT in violation of anti-trust statutes.

  8. Its a sham…Id rather they not play and feel the pain then get away with this BS. They never negotiated in good faith and decided to turn down a fair deal to litigate. That’s enough for me.

  9. “Has anyone thought about what this means for the cheerleaders? I think that any agreement should have, built in, a requirement that tghe networks cannot block the commercial-cut cheerleader shots with any sort of corporate logo. I wanna see them hotties! Let’s address the important issues, by golly!”

    They had a PLAN B…the pole

    Sadly, Goodell was the only one without a PLAN B!

  10. I’ve never thought the owners should lock the players out anyway. Question though..if they don’t won’t any rules the owners try to impose be sued over as unfair restraint on trade?

  11. OH NO!!!!!!! Whatever are these millionaires going to do now? It’s so sad that now, chad johnson wont be able to afford that gold plated shark tank. Now he’s going to have to cut back and get the silver plated one. What a freakin Travesty!!! Give me an effin break. Seriously, I hope they screw this season up, go ahead, because I for one will not watch a single game of football, or spend any money on these overpriced babies if they so much as miss a single day of training camp.

  12. I’m interested to see if the league just imposes the last offer as rule and starts up the 2011 league year on their own timetable.

  13. The language in the current CBA:

    The Parties agree that, after the expiration of the express term of this Agreement, in the event that at that time or any time thereafter a majority of players indicate that they wish to end the collective bargaining status of the NFLPA on or after expiration of this Agreement, the NFL and its Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns waive any rights they may have to assert any antitrust labor exemption defense based upon any claim that he termination by the NFLPA of its status as a collective representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.

    Since the NFLPA de-certified PRIOR TO and NOT AFTER the expiration of the express term of this Agreement, I’m not sure that they maintain their legal standing to claim that the NFL cannot use the “sham” defense.

  14. I find it hilarious that the NFL’s three golden children who get more protection than anyone are the ones spearheading the lawsuit.

  15. Love it. Ab-so-lute-ly love it.

    Now we’ll see who really has the stones. The players? The owners? The fans? The networks? Time to pick sides.

    Brady or Kraft?

    Mr. Bundchen, you are done. And stop dancing.

  16. Let them decertify. Then get the owners to bring a uniform stance against the players – we will not operate under any collective bargaining rules for two full seasons. Without a union, then you, as individual employees, play by our rules…not yours.
    -No union means we set the rookie pay scale, not your agents.
    -You WILL play 18 games, or you will find another job.
    -You will practice when we tell you to practice, how we tell you to practice.
    -And don’t try and get cute about it. Remember when we could only suspend players without pay for a maximum of 4 games? Well, that was part of the old collective agreement…which no longer exists. So, hold on to your hats, and KEEP YOUR MOUTH SHUT!
    -We will no longer sell jerseys with your name on the back in our stores or on our websites. Only team-related merchandise. That way WE make money, not YOU.
    -NFL Network will no longer interview players, past or present, or advertise with commercials in which players are getting paid.

    Try that for two years and see what the players think.

  17. I can’t help but feel bad for the players. I heard about one player who had his heart set on a 2012 Ferrari with a built in Mountain Dew machine. Since the owners are being so cheap now he has to downgrade to a Mellow Yellow machine in the Ferrari. Gross!

  18. The NFLPA has CHOSEN to decertify, thus it is no longer an entity that represents the players, they are all now individuals who no longer pay “union” dues

    That said, we should NEVERhear about DeMaurice Smith ever again b/c he is unemployed now that the NFLPA no longer exists.

    If ESPN and the liberal media keep talking about Smith, then I must interpret that as meaning that ESPN and the liberal media talking heads fully expect the NFLPA to reform with Smith as its figurehead, once a new deal has been struck.

    Therefore, decertification, and the defense of it, is a sham. If I were an NFL owner, I would lobby for language which would prevent decertification in the future, or allow it but then prevent the NFLPA from reforming. I would also demand some protection for the NFL owners and each of their individual businesses. Make it so that if the NFLPA dissolves and the players attempt to sue the NFL, they would have to sue every NFL club individually, which means 32 separate lawsuits for EVERY SINGLE NFL player who files suit.

    I doubt the players would have the money to continue their litigious ways if that were the case

  19. Owners agreed to that provision while Gene Upshaw was alive, they apparently never dreamed that the union leadership would fall so low, into the hands of a crooked louse like De Smith. They agreed to it in good faith, something about which Smith knows nothing.

  20. commandercornpone says:
    Mar 11, 2011 8:48 PM
    in those days they werent dealing with a sham of a union head, however.
    =======================

    Actually, they were.

    Upshaw was Rozelle and then Tagliabue’s whipping boy. He wasn’t a lawyer, and both commissioners developed “friendly” relationships with him that allowed them to to exploit his naivete.

    After every other pro sports league had free agency, Upshaw was finally able to “negotiate” the sham “Plan B” free agent plan in exchange for a salary cap. Players had to go around their own union to win real free agency in court.

    Glad I could clear that up for you.

  21. I got an idea. why doest profootball talk take a poll of how many fans are siding with the owners or the players. I have a feeling these players would agree to whatever the owners offered after seeing the results.

  22. Key phrase “…upon or after the agreement’s expiration”. Mr. D did not wait until expiration before he filed decert. Expiration by contract is midnight. Ergo, the “sham” arguement is fully and legally justifiable. Moving forward, an appellate court will rule that a lockout is NOT in violation of anti-trust statutes.

    ******************************

    Actually, I think the extension they signed last week extended the CBA until 5 PM EST, not midnight. But even so, I believe Mr. D decertifed at 4 PM. I’m not a lawyer, but wouldn’t it be funny as hell if Smith inadvertently screwed his players over by jumping the gun 60 minutes?

  23. Both sides long ago waived the “shame” defense. They don’t even bother to pretend any longer.

  24. So let me get this straight, players can organize and dis-organize as they see fit to serve their best interests. But when the owners want to organize a little and implent a few rules to keep some parity and integrity in the game the players cry foul and take the owners to court. Ok, just making sure I got it straight here.

  25. Brady is practing with his crutch, Brees is applying makeup to make the birthmark more prominent, and Peton is polishing the slouch shoulder, hangdog look, in preparation for their upcoming court appearance.

  26. I’m having real difficulty choosing sides here.

    It takes an incredible amount of hubris for NFLPA to decertify without knowing the NFL’s finances. If the league’s statements about costs are correct, NFLPA may have walked away from a better deal than they would get through litigation.

    And it takes an incredible amount of hubris for the NFL to threaten a lockout that would “force” the union’s hand. If the books have information worth hiding, the owners may wind up with a much worse deal than they could have negotiated, once that information comes out in a courtroom.

    No one should walk into a courtroom without knowing for sure they’ll be victorious.

  27. Mike, you are delusional, if you think this means the owners are just going to go on and have football.

    They will impose their own rules now and the players will reinstate their union and strike.

    But, just one day in this country with one less union is a great day.

  28. Blah!

    Blah!

    Blah!

    Wake me when there’s a new CBA or in August; whichever comes first.

  29. As a Dolphin fan this is good news.

    Anyway, I can’t wait to see what scabs we get to play next season. I’m serious.

    Screw the former NFLPA and ALL OF THE PLAYERS. FIRE THEM ALL.

  30. “It seems pre-meditated to me, especially since they filed to decertify, you know, before the actual expiration of the CBA since the CBA doesn’t even expire for a few more hours.”

    Somewhere there is the requirement that decertification had to be filed by 5PM even tho the extension of the original CBA ( original March 4th expiration) does not expire until 11:59PM. Perhaps someone has an explanation for the purpose of the time gap.

  31. what a clusterf***

    before you go hootin’ and hollerin’ that there will be football in 2011 under these conditions, that means owners essentially write the rules of the game for 2011

    I highly recommend watching the rerun of NFl Total Access from earlier today…the guys explained it beautifully

  32. The end of the NFL as I know it.

    What a sorry state of affairs. With 20% of people out of work in this country, with the USA in financial trouble with talk of ending Medicare and Social Security we are all focused on whether there will be football this year? What the f.

    I have been an NFL fan for many years but this makes me sick enough to say screw it – I will find better things to do with my time and money.

    The fans are what makes the NFL – So the owners and players better get their priorities in order. You stand to loose millions of loyal fans along with all the money you make ON US.

    You all better fix this before it’s too late – like now!

    PS: I will still be fishing with you Pete and John this spring.

  33. the NFLPA had no plans to ever sign any deal what so ever,re: my own QB tweeted as much at 7:00 o’clock this morning..Aplogizing to all NFL fans,if the deal not done by 1st of April some lucky Saints fan will have my tickets:-(

  34. @ tonyd56784
    Boycott the NFL? No way. I’m on the side of the league and each individual team’s right to pay his employee-players the price the employee-player is willing to play for. I’m on the side of a rookie wage scale; I’m on the side of a draft which allows those choosing to enter the draft to accept the team selecting him or refusing to play at all. I’m on the side of an added play-off game, whether the season be 16, 17, or 18 games (in actuality, the season is a minimum of 20 games now: 4 preseason and 16 regular seasons). And piss on the players who cry about suffering the pain and agony of added games; they have no qualms about playing for more money and then playing into their near 40s. Spare me; it’s all about greed and the curse of union greed. The “have-nots” became the “haves”, and now they want to become the “have it alls”.

  35. Big mistake on both sides. They are going to regret this. I hope it is worth it for both sides. Personally I could care less if there is no football. I will find some other entertainment, ( yes, football is entertainment like going to the movies), I do care about the people (other than the players) who depend upon the NFL to make a living. This will already hurt a bad economy. My opinion both sides are being greedy, prideful and foolish.

  36. “I’m on the side of the league and each individual team’s right to pay his employee-players the price the employee-player is willing to play for.”

    Well, you are for it – but the owners and players aren’t.

    Read the agreement they have operated under – NO ONE agrees with you.

  37. “So let me get this straight, players can organize and dis-organize as they see fit to serve their best interests. But when the owners want to organize a little and implent a few rules to keep some parity and integrity in the game the players cry foul and take the owners to court. Ok, just making sure I got it straight here.”

    Can’t have an anti-trust exemption without a CBA.

    You gonna post something like that, you should have known that fact.

    The owners initiated this. Players wanted to keep it as it was.

    Reacp –

    Players wanted to keep what they have.

    Owners wanted $1B more.

    Get it? Players didn’t want one more cent.

  38. Ah yes, “the curse of union greed.” Maybe it’s time to pass that official Scott Walker bong with the Packers logo around the carb to your pal with the tattered copy of Atlas Shrugged and stop bogarting the demagoguery. Seriously, who wants a bigger piece of the fat pie — another billion dollar piece — before divvying up the rest? The owners.

    I find it fascinating that so many people are willing to side with the likes of Jerry Jones, Dan Snyder, and the rest of those intransigent titans of capitalism. Because they obviously care about YOU, the average fan, what with their reasonable prices on tickets, concessions, parking and merchandise, and willingness to abandon historical fan bases (Baltimore, Cleveland, and next up: Minnesota or San Diego) at the first whiff of BIGGER CASH from new luxury box-loaded, taxpayer-funded stadiums.

  39. i dont feel bad for the players at all. but moochzilla said it perfectly. this isnt a strike, the owners are threatening a lockout. the players dont want any more, were willing to cut 1st rounder pay, and willing to give up $325 million more to the owners. the owners dont really do anything except front the money. i go to watch the players, not the owners. i realize some of these players make 10 mil a year, but it is what is deemed their value on an open market. why is it that the ones actually working for the money have to give up more? if anybody has problems with terms like unions and free market then youre in the wrong country or slept way too much in history class.

  40. The sham defense is still in play.

    The NFL filed an unfair labor practice against the NFLPA on 2/14/11, alleging surface bargaining.

    This occurred prior to the NFLPA’s decertification & prior to the expiration of the CBA.

    Therefore, CBA Art. LVII Section 3(b) is inapplicable, and the NLRB must settle this claim.

  41. And if all the dust settles, an agreement is reached, and football starts again, new players should have the option NOT to join a union.

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