The NFLPA reportedly is choosing to decertify today because, under the Collective Bargaining Agreement, the union must do so before the CBA expires. Otherwise, the union must wait six months to do so.
The fact that the labor agreement expressly contemplates possible decertification made us wonder whether the CBA contains language allowing the union to circumvent the argument that decertification is a “sham.”
We’ve found language in the CBA that seems to undermine the “sham” argument.
Here’s what the CBA says at Article LVII, Section 3(b): “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 the termination by the NFLPA of its status as a collective bargaining representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.”
In English, this means that if the players vote to decertify after the CBA expires, the NFL can’t argue that the move is a sham.
Here’s where it gets confusing. The union reportedly will cease to exist via a “disclaimer of interest” filed by the NFLPA, not by a classic decertification. (The “disclaimer of interest” is essentially an abandonment of the union by its leadership.) Under the “disclaimer of interest” route, it could be that the “sham” argument survives.
Also, Article LVII, Section 3(b) contemplates decertification after, not before, expiration of the CBA.
Based on the prior provision of the CBA (it’s Article LVII, Section 3(a), we’ll spare you the additional legal gobbledygook), it could be that the disclaimer of interest is aimed at setting the stage for individual antitrust lawsuits, and that formal decertification could follow expiration of the CBA in an attempt to block the sham argument.
It’s all very confusing, but the most important point for now is that the CBA (as we suspected) has language that potentially blocks the NFL from claiming that decertification is a sham, which would then make it harder for the NFL to override the union’s strategy with a lockout.
The best news for fans? The possible lack of a “sham” argument makes it more likely that the union’s approach will work, which means that football will continue while the two sides battle it all out in the courts.
All that said, we still can’t figure out why the union banged the “lockout” gong for so long. The union apparently intended at all times to dissolve the union and sue, blocking a lockout. So why get us all worked up about a lockout when the union knew it could keep a lockout from happening?
Perhaps the union wrapped itself in the “let us play” nonsense in order to build public support, and/or to get the players to take the situation seriously.
Either way, there’s a good chance we’ve all wasted plenty of time fretting about something that was never going to happen. Even though fans should embrace the union’s strategy, since it will allow football to continue, fans have every right to be upset at the union for taking some apparent liberties with reality.
UPDATE: The antitrust lawsuit filed Friday by Tom Brady and others alleges that the NFL waived the ability to raise the “sham” defense when settling the antitrust lawsuit filed more than 20 years ago by Reggie White and others.