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League claims decertification came too early to avoid “sham” defense

GreggLevyAP

The fact that the NFL has locked out a supposedly non-union work force implies that the league believes the union has not properly and effectively decertified.

And the NFL has now expressly said so.

“The union only pretended to decertify in 1990,” NFL outside counsel Gregg Levy said in a statement provided to PFT.  “As history has confirmed, that purported decertification was a sham.  In an effort to protect its ability to repeat the fraud a second time, the union tried in the White settlement to limit the NFL’s ability to challenge in an antitrust court any future attempt by the union to pull off a similar sham.  But that limitation could have applied only if the purported decertification occurred after expiration of the Stipulation and Settlement Agreement.  The union was in such a rush to get to court that it did not wait until SSA expiration.  The league is therefore free to show that this ‘decertification’ is also a sham.”

Levy is referring to Article LVII, Section 3(b) of the CBA, which states as follows:  “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 Article LVII, Mutual Reservation of Rights:  Labor Exemption or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.”  (Emphasis added.)

The problem for the players is that Article LVII, Section 3(a) of the CBA required them to wait six months before filing an antitrust lawsuit if they failed to file it before the expiration of the labor deal.  So they’ve opted, apparently, to file the lawsuit in accordance with the terms of the CBA and hope that they can cobble together an argument that will allow the waiver of the “sham” defense to still apply.

The league’s position is pretty simple.  By failing to wait until the CBA expired to decertify, the plain terms of the agreement preserves the league’s ability to argue that the process of shutting down the union is a sham.

And it is a sham.  Everyone knows it’s a sham.  But if the league can’t argue in court that it’s a sham, it doesn’t matter.  If the league can argue that it’s a sham, then the league will be in good position to avoid an injunction and maintain a lockout.

Of course, that’s bad news for the fans, because it means that a lockout will continue until a deal is reached at the bargaining table.  With the players taking personally the treatment they’ve experienced of late, the players may be willing to cut off theirs noses to spite their faces, which means that the offseason could indeed be compromised if not completely forfeited.

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43 Responses to “League claims decertification came too early to avoid “sham” defense”
  1. oldhamletman says: Mar 12, 2011 1:25 PM

    another in the long series of Player missteps…. boy are they screwing this up….

  2. lawyermalloy says: Mar 12, 2011 1:27 PM

    Wake me when there’s a kickoff!

  3. hobartbaker says: Mar 12, 2011 1:28 PM

    Of course it’s a sham (no quotation marks needed) but so is Old Dotty. There is absolutely no way that one geriatric with an agenda should be making all of the decisions here. It’s a travesty.

  4. cowboyaggie says: Mar 12, 2011 1:28 PM

    Demoron Smith is a representative of the players. I believe they are making a big mistake in hiring him and letting him represent them. The owners had reduced the OTAs and training camps as well as the amount of contact allowed in practices etc. They also deferred the 18 game schedule for another two years and agreed that both sides would have to ok it in the next negotiations. I don’t see anywhere where the players were willing to negotiate.

  5. stataddict says: Mar 12, 2011 1:35 PM

    Wow, the league is using my argument that I posted: http://profootballtalk.nbcsports.com/2011/03/11/antitrust-lawsuit-alleges-that-nfl-has-waived-sham-defense-to-decertification/#comments

    I’m not a lawyer but I did stay in a Holiday Inn Express last night.

  6. vmannj says: Mar 12, 2011 1:36 PM

    Let me get this straight…the owners wanted to take money off the top so that the businesses they run could cover their operating costs and so tax payers would be relieved of the burden of paying for new stadiums. To offset this loss of revenue to the players, the owners wanted to lower the ridiculous salaries of rookies who have yet to even practice, guarantee salaries of veteran players, and set up a fund for retired players. And the players said NO to that? Now tell me again, whose side are you on…?

  7. txchief says: Mar 12, 2011 1:36 PM

    I’m sure the NFLPA “trade association” is putting together some pity advertisements. Probably some slow motion shots of the players working hard and being compared to migrant workers and coal miners. In the background I can hear a sorrow-filled country and western song about the working man who lost all of his limbs, his pick-up truck and his dog to the evil, tyrannical owners. I can hardly hold back the tears.

  8. tubal22 says: Mar 12, 2011 1:37 PM

    I bet DeMaurice Smith forgot to read that part.

    That’s what happens when the trial lawyers play with the big boys.

  9. saberstud75 says: Mar 12, 2011 1:40 PM

    Ha, looks like this thing is already blowing up in DeMo Smith, Bradey, and Manning’s collective faces. Lock all the players out for the whole season. Show the players what it is like to be normal.

    I bet there will be lots of cheap escalades and jewlery on ebay if the lockout continues, LOL!

    No, I don’t want your autograph… Yes, supersize my order!

  10. These pretzels are making me thirsty! says: Mar 12, 2011 1:44 PM

    Bring on the scabs. I’ll be first in line to buy tickets to watch my team with players that actually appreciate getting paid obscene amounts of money to play a game.

  11. JL says: Mar 12, 2011 1:45 PM

    The truth is that having guys like Peyton Manning, Tom Brady and Drew Brees as your most touted player representatives (I don’t mean player representative in a union way, I mean it as a named person in the lawsuit, bringing them to the bargaining sessions etc.) is good for the fans, but the truth is these 3 guys make up a small minority of players that would be in serious financial peril in the event of a lockout that last the entire season. They don’t represent the vast majority of players that would have to seek alternative employment just to feed their families

  12. Deb says: Mar 12, 2011 1:45 PM

    Last night, bearsfan63 posted there would be no lockout because the owners wouldn’t do such a thing. Uh-huh. Not only have they discontinued operations, but they’re going to try every trick in the book to claim the union is still a union in order to ensure the lockout holds. If the owners get their way … good-bye NFL 2011.

    This is not a players’ strike. The owners are shutting down the league. And the players are not employees. They are partners. Mark Zuckerberg invented Facebook and investors financed the venture. He wouldn’t have become a billionaire without their investment risk–but they could not profit without his product. The NFL operates on the same principle. Owners could not profit from their risk without the players–who take risks of their own.

    Have most businesses suffered during the recession? Yes. But the NFL signed a record-setting TV contract. Ticket , merchandise, and PSL sales are up. Why should players believe the owners’ poor-mouthing without proof? Would you?

  13. mick730 says: Mar 12, 2011 1:46 PM

    A lockout is the best news possible for the fans, and if Doty issues an injunction to keep the NFL from shutting down it’s own business, the NFL will win real fast on an appeal. I’d like one of the lawyers who run this site tell us where in the US constitution the government can tell a business to keep its doors open when it has decided to shut them.

    A lockout will force the players to accept the owners offer which was extraordinarily fair and it will put an end to this nonsense that the players have an ownership interest in the league and it’s individual franchises. They are not partners, they are employees, and that’s all they are.

    Exceedingly well paid employees, but not partners.

  14. shaggeez says: Mar 12, 2011 1:47 PM

    Seems pretty clear-cut. There is a specific time they decertified and a specific time the CBA expired. If they decertified before, the sham argument is available. If after, it’s not. Not exactly rocket science.

  15. agelardi says: Mar 12, 2011 1:50 PM

    Lawyers, winning. Fans, losing.

  16. oldhamletman says: Mar 12, 2011 1:52 PM

    It sounds to me that the players had 90% of what they wanted on the table … but they didn’t like that they weren’t getting their butts kissed enough so they didn’t negotiate in good faith…

    I’m very pro union… but I don’t see how the NFLPA did their members a service….

  17. vmannj says: Mar 12, 2011 1:53 PM

    Sorry, Deb. I have to disagree. An investor is someone who has already earned money and is giving said money to a business in hopes of receiving a return on that investment. An employee is someone who works for a company in order to receive compensation for his/her services. Players get paid to play a game. That makes them employees. And like most employees (like the rest of us), if you don’t like the rules that your place of employment sets forth, then you need to find a new place of employment.

  18. cletusvandam says: Mar 12, 2011 1:53 PM

    I want football as much as anyone, but I’m to the point where I hope the owners screw the players so bad they lose everything and end up playing for minimum wage.

  19. bigbigodnarb says: Mar 12, 2011 2:01 PM

    Flo, for a lawyer, you’re a moron. I’m a lawyer too, and the union has decertified. It’s not a union any longer. Thus, the decertification isn’t a sham. If it the NFLPA becomes a union again, that doesn’t make the decertification a sham.

  20. James says: Mar 12, 2011 2:01 PM

    To the NFLPA-TA. From the fans standpoint, players come and go, but my team is forever.

    The sooner you realize that we don’t really care who is on our team (yes we want to most competetive team) as long as we have a team to root for is all we care about.

    The offer made by the league, in my opinion is more that generous and fair, yet you and your leader DS and his trained chimp GA screwed it all up for us fans by walking away.

    Shame on you all.

    A. Fan

  21. realitypolice says: Mar 12, 2011 2:07 PM

    oldhamletman says:
    Mar 12, 2011 1:25 PM
    another in the long series of Player missteps…. boy are they screwing this up….
    ==========================

    If you honestly believe the union didn’t know this, you’re crazy. Whatever you think of union leadership, I am pretty sure they can read.

    They obviously decided not to wait until the expiration because they didn’t want to wait 6 months to file the anti-trust suit.

    Decertifying early on gives the league the opportunity to argue in court that it is sham. They still have to prove it.

    And it doesn’t matter if you know it’s a sham, I know it’s a sham, the whole world knows it a sham, if everything was done correctly and they did truly, legally decertify, it will tough to prove in Court.

    Especially if the case lands on Judge Doty’s desk.

  22. touchdownroddywhite says: Mar 12, 2011 2:09 PM

    Didn’t PFT also say that part of the CBA required for the players to be unionized after the last decertification? If that is correct, than the league will have a hard time showing that the union didn’t actually intend to go out of business the last time. Or am I missing something here?

  23. dvnelson72 says: Mar 12, 2011 2:10 PM

    Players are not partners. They are fungible resources.

    Did the league fall apart when Brady was injured? Will it fall apart without Favre?

    No

    Players comevand gone every year.

    Next thing you know these self-important meatheads (I say that as an ex college semi athlete) will tell us they need oversight of operations and GM strategy.

    Bring on the scabs. Show us how fungible they are… Again.

  24. txchief says: Mar 12, 2011 2:15 PM

    Could someone please inform me if there are any trade unions that have created new businesses and new jobs?

  25. joerevs300 says: Mar 12, 2011 2:16 PM

    If the owners are able to win this argument in court and definitively keep the players locked out, this is going to be the biggest bungling by a group of players in professional sports history, and DeMaurice Smith will go down in flames.

    Seriously, if it swings over to the owners, I think they’d gladly sacrifice the 2011 season to get a deal in place that is WAY less generous to the players than their last offer.

    And I promise you, no matter how financially sound the players are saying they are, if they go a whole season without getting paid, they are going to crack faster then Humpty Dumpty.

    So right now, advantage players. But if it swings back to the owners, they are going to wish they had simply met across the middle where things were in their favor.

  26. snnyjcbs says: Mar 12, 2011 2:19 PM

    It is no bad deal for this Fan, I want to see the owners thump these Greedy Players. I love it no Free Agency and no paychecks for the players.

    I do feel for the real Football Players, the majority of the players that are the grunts. You know the ones that moved back in with the parents because of what is going on.

    The same ones the GREEDY Manning’s, Brady’s and Bree’s are robbing on a daily basis. Remember owners bring them to their knees and my family and my funds will continue, bend to these GREEDY Punks and there are so many other ways to spend my dollars.

    My kids want to get into showing Cutting Horses and I would like to spend more time traveling and playing Golf.

  27. txchief says: Mar 12, 2011 2:22 PM

    Maybe the players’ best strategy would be to sue the NFL for violating child labor laws!

  28. snnyjcbs says: Mar 12, 2011 2:28 PM

    Hey what happened to the Poll you were taking showing the Players going down in Flames with Fans behind the owners?

    What happened?, the players start contacting you telling you no more scoops unless you pull it?

    That is a pretty big mistake by the Union Lawyers regarding the Sham D and blowing the terms they had out of the water wouldn’t you say. Where did these players find these Lawyers on a Street Corner?

  29. endzonezombie says: Mar 12, 2011 2:30 PM

    The NFLPA was well aware of the language and conditions in Article LVII Section 3 (b) that the league lawyers are now brandishing. My guess is that the NFLPA trade association attornies will argue that the true and complete CBA expired on March 4th, and the extension was only for the limited purpose of negotiation. All other league business had shut down between March 4th and March 11th when they filed to decertify. Because they filed for decertification after the March 4th expiration of the complete CBA, the court might agree that it meets the intent/requirements of Article LVII Section 3 (b).

  30. ernestbynershands says: Mar 12, 2011 2:33 PM

    Transcript from the bargaining session:
    Owners: give us more money.
    Players: no. You give us more money.
    Owners: no.
    Players: stop being a poopie-pants.
    Owners: you stop being a poopie-pants.

    I can’t wait til 2013 when we will have Football Night In America on Vs. In between Tour de France and Luge.

  31. edion1473 says: Mar 12, 2011 2:37 PM

    I for one do not care who’s fault it is. They are millionares and billionares, and seem to have forgot about the lowly fan. Even though we are now going to be used like kids in a divorce, with both sides trying to win our love. I say we tell them all to go to hell, and lock them out of our lives. Let’s see how these rich people fare with empty stands, crappy TV ratings, and no one paying 150 bucks for extra channels to watch them on. It needs to start with the Season Ticket holders. If they got together and said no to their tickets for the year, that could be a good wake up call..

  32. Deb says: Mar 12, 2011 2:41 PM

    @vmannj …

    Because so many fans are jaded by the fact that they think football is a game they would gladly play for free and they feel the players should be honored just to be allowed on the field, I’m trying to put it in terms to take it out of that mindset. No, it isn’t precisely like the Facebook example. You could also use the example of authors and publishers. The publishers invest the money to bring books to publication, but without the authors, they’d have no books to publish. Any way you look at it, elite athletes are not employees in the strictest sense. And they are compensated based on the revenue they generate.

    Players are not the ones who bid their salaries into the stratosphere. Owners like Paul Allen and Jerry Jones did that by using signing bonuses to skirt the salary cap–or as others have pointed out, by obliterating the salary cap and simply raising it each year rather than staying under it like more prudent teams. These guys didn’t mind overpaying for talent because they had plenty of money and thought they could buy a championship. Now they’re not happy with what they’ve wrought. Too bad. That’s what happens when you play fast-and-loose with the rules.

    If you read your sports history, you’ll find owners used and abused players until the 1980s, so I’m not crying a river over men who got rich turning athletes into cripples, then turning them out the door. You guys can stand on the side of wealth and power if you like and keep waiting for them to trickle down on you. As I’ve said before, the only thing they’re likely to trickle is urine. No thanks. I’ll stick with labor, even if they make 1,000 times my salary.

  33. dontcallmepete says: Mar 12, 2011 2:42 PM

    “Americanize” those sports by combining them into the Luge de France. Speed biking on ice. Gettin’ hyped!

  34. dontcallmepete says: Mar 12, 2011 2:48 PM

    The offer made by the league, in my opinion is more that generous and fair, yet you and your leader DS and his trained chimp GA screwed it all up for us fans by walking away.
    —————————————–
    If I purchased a car and decided to take it back to the dealer “because it’s broken” do you think that he’s not going to want to examine the car? The players haven’t been asking for anything. None of us was in the room or privy to the negotiations so how do you know what was offered or what was turned down?

  35. randymossblewit says: Mar 12, 2011 3:24 PM

    The players are idiots. Extra money for the owners will eventually equal more private stadiums and lower operating costs resulting in higher wages. Simple economics. Way to go de smith!

  36. Rhode Island Patriots Fan says: Mar 12, 2011 3:25 PM

    The current player lockout is a proximate result of the NFLPA’s decertification and the antitrust complaint filed in federal court by Brady, Brees, Manning, et al. The owners had no practical alternative. The player lockout is how they can best apply pressure to re-start the negotiations. After all, it wasn’t the owners who walked out of the mediation room and abandoned the collective bargaining process. If any NFL fan feels like Tom Brady, Peyton Manning, or any other NFL player is being treated unfairly by an owner, then perhaps he/she can take up a collection or, better still, write a check. The best way to ensure a 2011 season—which, by the way, I think will happen—is with a new CBA.

  37. dontcallmepete says: Mar 12, 2011 3:44 PM

    My guess is that the NFLPA trade association attornies will argue that the true and complete CBA expired on March 4th, and the extension was only for the limited purpose of negotiation

    My guess is that they’ll try and link this suit to the one involving TV revenue. That suit almost has to bring TV executives in to testify about those negotiations and make the point that the league was planning a lockout long ago and therefore any subsequent negotiations were not in good faith. There was a clause in the old CBA that the league would seek and accept the highest offers (because the players get revenue from this) The argument is that the league didn’t do this in order to get the networks to agree to payments even if the season was cancelled. The networks, tired of the “take it or leave it” aspect to negotiations with the league almost certainly have provided depositions to union lawyers.

  38. Deb says: Mar 12, 2011 4:47 PM

    @txchief …

    Not one executive or CEO has created anything of value without workers to bring the vision to fruition. Next time, smart ass, you try building a nation, a city, or a railroad, fighting a war, manufacturing a car, or playing a football game by yourself and see how much money you make.

  39. tred11 says: Mar 12, 2011 6:49 PM

    very transparent tactic from the union and demaurice “uglymofo” smith of turning down every offer from the owners hoping to hit a “grandslam” with Obama Doty. I’m betting Doty gets replaced on this case and the union is left hoping another Socialist judge is found.

  40. Deb says: Mar 12, 2011 9:08 PM

    Unreal. Either the owners are flooding this site or a lot of workers are drinking Rupert’s Kool-aid.

    Yeah, you guys just keep following the program. Keep supporting the filthy rich, giving tax breaks to the wealthy and waiting for Corporate America to trickle the benefits of their bailouts and interest-free loans and government guarantees down to the rest of us. I’ll just stand over here under my umbrella. :roll:

  41. bmuhler says: Mar 12, 2011 11:54 PM

    I am not a lawyer, but I deal with FAA regulations every day. It says “if the players indicate”. Indicate does not necessarily mean the actually decertify, but simply ackowledge thier desier. The players indicated thier desire to decertify before the 2010 season and therefore the NFL should be able to use the sham defense.

  42. Magic blueberry says: Mar 13, 2011 12:01 AM

    Those of you who hate the players, why are you going to watch NFL games when they start again? Why do you even visit this site? If you love football, then you should only be watching college and high school games. You make no sense.

  43. dumbaseinstien says: Mar 21, 2011 1:46 AM

    The rest of us get up, go to work, apply ourselves toward being the best at what we do & then we smile with gratitude at all our blessings…income (unfortunately) usually not high on that list. Then, we see these guys being paid millions to play a game acting like they deserve MORE! Well sports FANS, guess who pays for their “MORE” in the long run…the owners??? Really?! If you think so, then you could use an economics 101 refresher course. We, the fans, pay for it. It’s like a heard of cows at the top of the hill, if you’re hanging out at the bottom…then eventually you’re going to get very dirty! My point? None of them deserve “more”. They all need to pull their heads out of their ass’, agree to a lucrative comp plan ($9 BILLION should “Spread like Parkay”) & go back to work with everyone else in America!! Spoiled Brats!!!

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