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League continues to refuse to discuss settlement of Brady suit

Antitrust Hearings Against NFL Owners Begins Getty Images

With the NFLPA* ready and willing to resume mediation in the wake of Wednesday’s hearing in Minnesota regarding the motion to end the lockout, the owners still have no interest in discussing a settlement to the lawsuit pending against it.

We don’t need a settlement of this lawsuit,” league lawyer David Boies (pictured with his personal bodyguard, Elwood Blues) said, per the Associated Press. “What we need is a collective bargaining agreement so that players can go on playing and the league can put on games.  Until we have that, we’re not going to make any progress.”

We realize that Boies is a great lawyer who can fashion compelling arguments and mesmerize juries and judges and (most importantly) clients.  But he is simply parroting in this instance the same tortured message that the league has been pushing ever since he first captivated the owners at their meeting last month in New Orleans, prompting them to conclude that, one way or another, they will defeat the effort to lift the lockout.

A settlement of the lawsuit can become a CBA.  We know this because that’s precisely what happened in 1993, when the league and the players settled the Reggie White antitrust lawsuit, and the settlement became the labor agreement that, with extensions, remained in force for 18 years.

This time around, the league desperately wants to avoid having Judge Nelson supervise the CBA for the next 18 years.  But, as we’ve said time and again, the parties can negotiate the settlement in a way that does not empower her or anyone other than an arbitrator to resolve disputes.  Perhaps the league simply doesn’t want to make the concession(s) that would be necessary to cut Judge Nelson out of the process.  Regardless, the position taken by the league and adopted Wednesday by Boies means that no talks of any kind will occur until the Brady case is resolved.

Why, then, hasn’t Judge Nelson ordered the parties to return to mediation?  Though she still could do so at any time, it’s possible that she’s trying to gauge for herself just how hard-headed the NFL really is as she decides whether to lift the lockout.  And if the league refuses to resume talks within the next two weeks, Judge Nelson can mention in her written ruling lifting the lockout that she gave the parties every opportunity to resolve their differences, but that the NFL chose to dig in.

Our guess is that the league assumes it will lose at this level, and that the league is hoping to secure a reversal before the U.S. Court of Appeals for the Eighth Circuit.  Though Judge Nelson’s decision to lift the lockout would be entitled to some deference under the so-called “abuse of discretion” standard, the league will continue to focus on threshold legal questions regarding the ability of a union to shut down and sue as a tactic in a labor dispute.  The appeals court will explore those question from scratch, and at this point the NFL seems to believe that it’ll have a much better chance at winning when presenting its case to a randomly-selected three-judge panel in the first instance or, possibly, a rehearing before the entire full court.

And there’s good reason to think the league will fare better before the Eighth Circuit, which does its business primarily in St. Louis.  Of the 16 judges currently on the court, 11 were nominated by the one of the George Bushes, three were nominated by Ronald Reagan, two were nominated by Bill Clinton, and a senior-status judge was nominated in the late ’60s by Lyndon Johnson.  Given that the court is so heavily dominated by judges who secured their positions via Republican administrations, the league likely has a high level of confidence that the pro-business ideology demonstrated by most conservatives will, in the end, allow the lockout to continue.

In other words, don’t get too excited if/when Judge Nelson orders the lockout to be lifted later this month.  And, in the interim, don’t hold your breath for any further settlement discussions between the two sides — unless Judge Nelson orders them to do so.

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57 Responses to “League continues to refuse to discuss settlement of Brady suit”
  1. tednancy says: Apr 7, 2011 9:08 AM

    Once again, the owners are doing the right thing. They will not dignify this sham decertification and this ultimately baseless motion to lift the lockout by settling with the plaintiffs.

    Why would any defendant settle a lawsuit when the lawsuit is a sham?

    The players are responsible for the delay. Until their end run around the legal parameters of the CBA is stopped by the 8th Circuit, there will be no progress.

  2. tednancy says: Apr 7, 2011 9:12 AM

    By the way, why on earth would the NFL want a settlement/CBA supervised by a judge who appears to be predisposed to side with labor against management, and who appears to have little respect for the antitrust exemptions that make the NFL great?

    And for the next 18 years??

    Of course the NFL won’t settle. If they did, they would be acting against the long-term interests of the game of football as we know and love it.

  3. jimr10 says: Apr 7, 2011 9:12 AM

    Or, maybe how hard headed the players are. De Smith has no intention of negotiating a CBA.

  4. alkscout says: Apr 7, 2011 9:14 AM

    Go Phillies!!!

  5. duanethomas says: Apr 7, 2011 9:14 AM

    The NFL is rolling the dice that republican judges will favor them on appeal is a dicey proposition. The last time this happen 18 years ago, wouldn’t the scenario had been the same? Clinton was newly elected, but there was 12 years of Republican rule before that? (Bush & Reagan). If this is the best strategy they could come up with, which is to leave it in the hands of the courts….they need new attorneys.

  6. chapnastier says: Apr 7, 2011 9:15 AM

    I don’t even have the energy anymore. No one is going to change how they believe so lets just get back to the table and negotiate. Simple.

  7. FoozieGrooler says: Apr 7, 2011 9:20 AM

    Strange that that such a high-powered lawyer like Boies could only recommend that both sides get back to the bargaining table with the federal mediators.

    I guess that would be better then the inevitable smack-down he sees coming around the corner from Nelson.

    When you wait until the final session of the day to begin questioning the judge’s authority and jurisdiction over the matter at hand, you’re not “winning”.

    That’s the last resort strategy of a desperate lawyer.

  8. paulnoga says: Apr 7, 2011 9:20 AM

    MLB has an anti-trust exemption. The NFL went years with an assumed anti-trust exemption. The first thing the Judge should do is grant an anti-trust exemption to thew owners and let the appeals start. This topic needs to be addressed once and for all and it would keep the NFL going for decades.

  9. realitypolice says: Apr 7, 2011 9:26 AM

    The appeals court will explore those question from scratch
    ==================

    The above statement directly contradicts this statement that you made yesterday in the “Ten Things” post:

    “the appellate court won’t review the decision on a de novo basis (which is Latin for, essentially, “from scratch”). Instead, the Eighth Circuit must uphold the decision — whatever it may be — unless it is determined that Judge Nelson acted unreasonably.”

    So which is it?

  10. realitypolice says: Apr 7, 2011 9:29 AM

    tednancy says:
    Apr 7, 2011 9:12 AM
    By the way, why on earth would the NFL want a settlement/CBA supervised by a judge who appears to be predisposed to side with labor against management, and who appears to have little respect for the antitrust exemptions that make the NFL great?

    And for the next 18 years??
    ======================

    Didn’t you read the very next sentence where it says they can negotiate a settlement without empowering anyone other than an arbitrator?

    It’s funny how people on here have some sort of automatic radar that allows them to read only the parts of an article which jibe exactly with what they already believe and block out anything that doesn’t.

  11. mistrezzrachael says: Apr 7, 2011 9:41 AM

    W/ De Smith there…no shot @ CBA.

    So they have lockout lifted and appeal comes..That bring next CBA discussion to August or so. We’ll see how many players can last that long…Will enjoy watching Cromartie get taken to court as deadbeat dad.

    Not only that, but this KILLS free agency in 2011..No time to shop .

    Players were fools to decertify right after owner offer…Am hoping there is never a players union again.

    Bring on the replacements….and let the players rot. They had it too good.

  12. gtfan says: Apr 7, 2011 9:42 AM

    I’m seriously beginning to wonder if the owners are paying people to comment on this site. It is hard to believe that the majority of people think that it is the the players who are being unreasonable.

  13. mick730 says: Apr 7, 2011 9:46 AM

    This is the right call by the NFL.

  14. jc1958cool says: Apr 7, 2011 9:48 AM

    obviously the owners don’t care, they’re playing hard ball! i say take a year off and think about it!

  15. moggy6actual says: Apr 7, 2011 9:50 AM

    What I have yet to see from the columnists on this site is an acknowledgement that the owners opted out of the CBA for a reason. They didn’t opt out just for kicks. If the game is to be healthy both the owner and the players have to be happy.

    As I’ve stated before, I’m on the players side for things such as benefits, no 18 game schedule, expanded roster, retirement credits, rookie wage scale, etc. However, I’m on the owner’s side when looking at percentage of the take that should go to the players.

    It makes no difference to me if the players want to be considered partners. But if they do want to be considered partners they have to share in the expenses as well as the profits.

    But my opinion is worth exactly squat to both the players and owners. haha.

  16. tiredofthestupid says: Apr 7, 2011 10:04 AM

    “Of course the NFL won’t settle. If they did, they would be acting against the long-term interests of the game of football as we know and love it.”

    BWAHAHAHAHAHAHAHAHAHAHAHAHAHAH…stop it…HAAHAHAHAHHAHHAHAHAHAHAHAH…seriously….stop it.

    NO. SERIOUSLY. STOP IT.

    If you really believe that statement, I have some jobs for you to move to China, some foreclosures to attend to, some taxes to avoid paying, and some shady financial deals in the stock market to oversee….

    What the owners are doing is SOLELY for the interest of THE OWNERS. This is a friggin’ multi-billion dollar business. THAT’S IT! It isn’t some pie in the sky love affair with “America’s Game”, as the NFL network would have you believe.

    BTW, MLB has the STRONGEST union on the planet and it HAS anti-trust exemption. With that exemption you would see the NFL become just like the joke that MLB is.

    The “socialist” crap you guys seem to hate is PRECISELY what makes the NFL the GREATEST sports league in the world. EVERYBODY is forced to work TOGETHER. No one is ever happy and it ends up making the overall business more successful exactly because they are “fighting”. If either side ever decides they know “best” and really dig their heels in, they will LOSE the fans and, most importantly, the revenue they were trying to save.

  17. commoncents says: Apr 7, 2011 10:05 AM

    The players brought this on themselves, and if half of them end up in bankruptcy because of this, they deserve it.

  18. pfmadden says: Apr 7, 2011 10:07 AM

    realitypolice says:Apr 7, 2011 9:26 AM

    The appeals court will explore those question from scratch
    ==================

    The above statement directly contradicts this statement that you made yesterday in the “Ten Things” post:

    “the appellate court won’t review the decision on a de novo basis (which is Latin for, essentially, “from scratch”). Instead, the Eighth Circuit must uphold the decision — whatever it may be — unless it is determined that Judge Nelson acted unreasonably.”

    So which is it?

    ==============

    It’s both. Don’t be so myopic. Some questions decided by the judge are entitled to deference, others – ones that are pure questions of law are reviewed de novo.

  19. tednancy says: Apr 7, 2011 10:08 AM

    realitypolice says: Apr 7, 2011 9:29 AM

    tednancy says:
    Apr 7, 2011 9:12 AM
    By the way, why on earth would the NFL want a settlement/CBA supervised by a judge who appears to be predisposed to side with labor against management, and who appears to have little respect for the antitrust exemptions that make the NFL great?

    And for the next 18 years??
    ======================

    Didn’t you read the very next sentence where it says they can negotiate a settlement without empowering anyone other than an arbitrator?

    It’s funny how people on here have some sort of automatic radar that allows them to read only the parts of an article which jibe exactly with what they already believe and block out anything that doesn’t.

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

    Don’t be so snide. Here’s what it says:

    “But, as we’ve said time and again, the parties can negotiate the settlement in a way that does not empower her or anyone other than an arbitrator to resolve disputes. Perhaps the league simply doesn’t want to make the concession(s) that would be necessary to cut Judge Nelson out of the process. ”

    The operative word here is “concession(s).” The League would have to secure the blessings of the “NFLPA” in order to exclude Judge Nelson, which, again, would be playing right into De Smiths hands and validating what the NFL believes to be a sham action.

    It’s funny how people on here have some sort of automatic radar that allows them to read only the parts of an article which jibe exactly with what they already believe and block out anything that doesn’t.

    Touche

  20. duanethomas says: Apr 7, 2011 10:15 AM

    @mistrezzrachael : The players have had what to good? So you’re also talking about every other professional athlete then also? No major league unions, just let the owners decide what’s best for the players? They had that for 60 years and they supressed salaries, health care, pensions, player movement and maxed their profits. What will having replacement players accomplish?Bring on the replacements? You can already see them play in the AFL (had to shut down for 1 yr due to low attendance) UFL (bouncing checks left and right..no support) and CFL (couldn’t make it in the lower 48). The last time the NFL had replacements no one came or watched the product. Make sense honey.

  21. surshot says: Apr 7, 2011 10:15 AM

    Things must be bad when a lawyer needs a BODYGUARD

  22. rpiotr01 says: Apr 7, 2011 10:22 AM

    They all missed their chance to do this the right way, now they do it the ugly way. If they don’t see it through this way they’re going to be unhappy because they can always look back and say “what if.”

    Nothing to do now but enjoy the draft when it comes and then get on with life. NHL playoffs are always great, baseball season is here, nice weather will soon be here. Every now and then watch some game highlights from last year. Enjoy the summer and wait for the white smoke. It’ll happen and the 2011 season will go on.

  23. blantoncollier says: Apr 7, 2011 10:31 AM

    Has anyone read the link in the above ESPN.com article? The post would lead to you to believe the Players are ready, willing, and able to talk about a settlement. If you click through to the article James Quinn the lead attorney for the Players states: we “will listen carefully to (Judge) Nelson’s recommendations.”

    No where does the article state the players under Dee Smith are ready,willing, or able to work on a settlement of the Law Suit or continue to discuss a new CBA.

    Boies on the other hand is very clear. The NFL is ready, willing and able to return to the table to discuss a new CBA.

    At every point, the players have put a road block to resolving this situation.

    The facts are clear and havent been disputed. The players decertified prior to ending the discussions or lack of discussions with the Mediator. To those that dont understand how a negoiation works offers are almost made at deadline in fact strong offers are made at deadline to keep the discussions moving forward. The players MO has always been to work this through the courts.

    When the players are ready, willing and able to craft a new CBA not a continuation of the 1993 White Case–then there will progress.

  24. realitypolice says: Apr 7, 2011 10:37 AM

    @pfmadden:

    If you have a deeper understanding of judicial procedure than the typical PFT reader, good for you. I also understand the difference. I was being myopic to make a point. The two statements directly contradict each other on their face, and the author needs to realize that many people on here are using PFT as their only basis for trying to understand what is going on here.

    @tednanacy:

    Yes, that’s called negotiation. In exchange for getting the judge out, the players get something.

    If you’re saying the owners want to get the exact settlement they are looking for without making any concessions, I’d say you had a point there.

  25. realitypolice says: Apr 7, 2011 10:39 AM

    @tednancy:

    sorry for misspelling your screen name on previous post.

  26. thelockoutbeard says: Apr 7, 2011 10:40 AM

    The Lockout Continues grows on and so does the length of my Lockout Beard! I’m not shaving until they start playing again.. You can follow me on twitter to see the progression of my beard and the lockout. Follow me @thelockoutbeard

    -TheLockoutBeard-

  27. motobus says: Apr 7, 2011 10:50 AM

    I find it astonishing that so many people are entrenched in their position of supporting the owners, as if the owners are interested in serving the fans, the game, or anyone other than themselves. You are merely falling victim to their superior PR effort. The owners are not interested in decreasing their share of revenue with the players so that they can lower prices or not continue to raise prices for the fans… they will continue to milk us for every dollar they can get. They just want a higher percentage of the revenue than they are receiving now.

    I don’t understand the hostile backlash at the players for this lockout, as if they are the only ones to blame; as if the only sham in this ordeal has been the decertification of the Players Union. Do you really think that the extended negotiation period prior to the work stoppage was anything other than a concerted effort of the owners at garnering the publics favor. Everyone cites the players walking away from the last offer made by the owners as the unhinging of negotiations, but absolutely no progress was made during mediation from either side. The only concessions that were made related to football issues (off-season programs, mini camps, etc.), whereas everyone knows the only real issue in this debacle is the sharing of the gross revenues. Neither side budged from its prior position on this issue, so further mediation at that point would have been without merit.

    I’m not saying that taking the players side is the correct thing to do either. Taking either side in this battle is futile. We as fans have nothing to gain by supporting a position in this lockout. To support either side only further entrenches the owners or the former players union in their current position.

    Neither side is in this battle because they want to service the fans. Neither side wants to lower the already ludicrous ticket prices, package prices, merchandise prices, etc. Nor are they in this position, as oppose to what the owners would have you believe (via comments from John Mara) to see these prices stagnate and stop growing. Both sides want to continue to take us for all that we have. Money that doesn’t go to the players is going to go to the owners, and money that doesn’t go to the owners is going to the players–none of it is coming back to us, the fans.

  28. mick730 says: Apr 7, 2011 10:50 AM

    I remember the replacement players. I think it was 1987, right? I watched. Lots of people watched. Didn’t they even make a movie about it?

    As others have posted, expand the draft, bring on the replacement players and in a couple of years, nobody will know the difference. It’s the NFL and the fans that are irreplaceable. The players are totally replaceable. Don’t believe me? Ask Brent Faver.

  29. j0esixpack says: Apr 7, 2011 10:53 AM

    I’m with the owners on this one

    The suit doesn’t need to be settled before continuing CBA negotiations.

    I don’t see the sense of creating another hurdle before working on the CBA.

    I understand the two do have some relation, but the CBA is what’s most important and the sooner negotiations on the CBA re-start, the better.

  30. FoozieGrooler says: Apr 7, 2011 10:56 AM

    commoncents says: Apr 7, 2011 10:05 AM

    “The players brought this on themselves, ”

    Sure, it all started with the owners “opting out” of the CBA that wasn’t set to expire until the end of the 2012 season.

    Absolutely – all the players fault, they started it… yup, yup.

  31. kennyzed88 says: Apr 7, 2011 11:06 AM

    god i hope this ends the same way as the nhl lockout. players accepting every ownership stipulation, taking a 25% paycut and sheepishly saying “we under-estimated the owners resolve…”

    proof is in the last 3 decades. the league doesn’t run when the owners are unhappy and its the players who will be hurting. how many will be playing when the next cba expires? how many owners will still have their teams?

    do the algebra players, its not gonna end well for you.

  32. jeff061 says: Apr 7, 2011 11:07 AM

    This site is so slanted towards the players. How about an honest more important headline “Union Refuses to Come Back to the Table to Talk CBA”…this diversionary ploy of wanting to settle an irrelevant lawsuit instead of focusing on the CBA as the owners are leaves me wondering how the players ever got stuck with D Smith

    He is such a political tool – his amatuer PR “spinning” if everything is ridiculous

  33. tednancy says: Apr 7, 2011 11:10 AM

    @reality police

    What I am saying is that the owners should not discuss a settlement pursuant to a sham lawsuit that short-circuited the negotiating process in the first place.

    Even if the parties agree to use an arbiter in a new CBA and in any conflicts arising therefrom, any such agreement would implicitly validate the actions of the NFLPA and be an unnecessary concession considering that the NFL expects to prevail.

  34. drbob117 says: Apr 7, 2011 11:12 AM

    @surshot: Dan Ackroyd is very disappointed in you. Elwood Blues?? C’mon that’s funny!

  35. chapnastier says: Apr 7, 2011 11:14 AM

    @ foozie

    OK I have a little more energy…..

    The players failed to make a counter offer to the owners last offer. Had they done so then they might have continued negotiating instead of wasting the last month. So in a way, it can be blamed on the players even though the owners legally opted out of the previous CBA.

  36. 505phillyguy says: Apr 7, 2011 11:17 AM

    Settlement negotiations vs. collectively bagained agreement is just another PR strategy by the league to continue their pre-determined course of litigation. They know full well that they could negotiate a settlement with class counsel, agree that the union would re-form & that the settlement would become the new CBA. This whole strategy is a just another game of semantics to continue on their litigation strategy that they set in motion over 2 years ago. They opted out of the CBA, they imposed a lockout and now they are refusing to negotiate a settlement. When we don’t have football next year they will be the ones to blame.

  37. vadog says: Apr 7, 2011 11:17 AM

    Neither side is bargaining in good faith. I hope the judge recognizes this in her decision.

  38. vetdana says: Apr 7, 2011 11:24 AM

    reality police…..regards appeals ……The Supreme Court of Virginia said this in Santen v. Tuthill, 265 Va. 492 (2003), about the practice of an appeal from District court trial de novo to Circuit court: “This Court has repeatedly held that the effect of an appeal to Circuit court is to ‘annul[] the judgment of the inferior tribunal as completely as if there had been no previous trial.’”[1]

  39. pfmadden says: Apr 7, 2011 11:36 AM

    To those parroting the language “sham decertification” as though it means something to them –

    Is it your position that it would be a sham decertification if the agreement expired, the players waited six months (as they were unquestionably allowed to do under the former agreement) then decertified and sued?

    I think many of you are confused about what is happening. Of course the players gained a potential advantage by filing this lawsuit. That, in and of itself, does not mean that NFL has not violated antitrust laws. It may be that the players were required to wait 6 months to take this action. It is an untenable position, however, that the players do not have any rights to decertify and challenge the NFL as violator of antitrust laws, ever.

    So let’s back up: does it change your mind that the actual issues in this suit are meritorious ISSUES even if now is not the appropriate time to bring them to the fore? Would you prefer to sit on your hands for 6 months and then land right back here?

    This concept of a “sham” is ONLY important to the owners because the players lose some bargaining power by being forced to wait 6 months to file this suit. Thus the issue of the “sham” is a temporal issue and is not based in whether the players have the right to ultimately decertify.

    For my money, which the NFL and players enjoy a lot of, I’d like to resolve this issue now and not wait 6 months to get back to this same point. If that means negotiating a settlement to the lawsuit (*GASP*), so be it. But the fact of the matter is, the players CAN’T return to the CBA bargaining table as they have decertified. The owners WON’T enter into settlement negotiations. You can argue on this site until you are blue in the face that the player’s decertification is a “sham,” but if the NLRB rules it to be so, and the players wait six months and refile, your position most change because, you know, it wouldn’t be a sham anymore and you’d have to actually deal with the merits.

    Why not deal with the merits of the lawsuit in your head NOW rather than being an owner parrot?

  40. 505phillyguy says: Apr 7, 2011 11:45 AM

    @vetdana
    reality police…..regards appeals ……The Supreme Court of Virginia said this in Santen v. Tuthill, 265 Va. 492 (2003), about the practice of an appeal from District court trial de novo to Circuit court: “This Court has repeatedly held that the effect of an appeal to Circuit court is to ‘annul[] the judgment of the inferior tribunal as completely as if there had been no previous trial.’”[1]

    ___________________________________

    C’mon man…you should know that what the Virginia Supreme Court says has no relevance to federal law. If you are going to post legal precedent on the issue, at least post something that is binding and relevant.

  41. FoozieGrooler says: Apr 7, 2011 11:47 AM

    chapnastier says: Apr 7, 2011 11:14 AM

    “@ foozie
    OK I have a little more energy…..”

    One thing I think even both you and I can agree on, there’s plenty of blame to go around, on both sides.

  42. tednancy says: Apr 7, 2011 11:48 AM

    505phillyguy says: Apr 7, 2011 11:17 AM

    Settlement negotiations vs. collectively bagained agreement is just another PR strategy by the league to continue their pre-determined course of litigation. They know full well that they could negotiate a settlement with class counsel, agree that the union would re-form & that the settlement would become the new CBA. This whole strategy is a just another game of semantics to continue on their litigation strategy that they set in motion over 2 years ago. They opted out of the CBA, they imposed a lockout and now they are refusing to negotiate a settlement. When we don’t have football next year they will be the ones to blame.

    ==========================

    Why are the parties in court instead of at the bargaining table? Because the NFLPA sued the NFL, that’s why.

    The NFLPA are the plaintiffs, are they not? Last time I checked, when someone sues they are pursuing a litigation strategy. Don’t even attempt to spin this any other way.

    Nice try.

  43. actuallawyer says: Apr 7, 2011 11:54 AM

    Its sad that Forio, a supposed lawyer, does not understand the concept of mediation.

    Yes, the judge could require that the parties attend mediation but, as the saying goes, “you can lead a horse to water, but you can’t make him drink.”

    If the parties are not ready to engage in serious negotiations, forcing them to talk will accomplish nothing.

  44. tednancy says: Apr 7, 2011 12:00 PM

    pfmadden says:

    This concept of a “sham” is ONLY important to the owners because the players lose some bargaining power by being forced to wait 6 months to file this suit. Thus the issue of the “sham” is a temporal issue and is not based in whether the players have the right to ultimately decertify.

    For my money, which the NFL and players enjoy a lot of, I’d like to resolve this issue now and not wait 6 months to get back to this same point.

    ===============================

    You are being disingenuous, or mendacious, or both. Either way, the reason for the 6 month requirement (which you conveniently ignore) goes directly to the heart of the NFL’s argument that this IS a sham: the NFLPA, which has been in force without interruption for 18 years, decertified only as a means to secure leverage against the NFL in a new CBA, and NOT because it believes that the NFL violates antitrust laws as such might apply to a newly christened “trade association.”

    That is, by definition, a sham action. The six month period is not just some arbitrary term; it is required for situations just like these. It is intended to prevent abuse of the courts by unions such as the NFLPA who would rather litigate for leverage than work within the accepted boundaries of collective bargaining.

  45. ffootballontwitter says: Apr 7, 2011 12:10 PM

    It’s obvious that neither Judge Susan Nelson, Kessler nor Boies are big on social media, unlike President Obama.

    Judge Nelson asked if players had engaged in behavior inconsistent with the dissolution of a union, like picketing. If you were to follow NFL players’ tweets (as I do), their tone and intent is EXACTLY like picketing. Fans that take the time to ask questions on Twitter get the same experience as if the athlete were picketing in front of the stadium.

    And that’s just the tip of the iceberg. Perhaps you’ve read about Von Miller, one of the ten athletes who filed the lawsuit in the antitrust case. He hasn’t even been drafted. Who’s paying his bill? Legal fees are expensive. Do you think he is paying for his own lawyer? LOL!

    Even though the union has “disbanded”, union-like activities continue.

  46. liontomyself says: Apr 7, 2011 12:17 PM

    FoozieGrooler says:
    Apr 7, 2011 10:56 AM
    commoncents says: Apr 7, 2011 10:05 AM

    “The players brought this on themselves, ”

    Sure, it all started with the owners “opting out” of the CBA that wasn’t set to expire until the end of the 2012 season.

    Absolutely – all the players fault, they started it… yup, yup.

    —————

    The players APPROVED the opt out…..yup, yup.

    So…..

    it all started with the players “opting out” of the CBA that wasn’t set to expire until the end of the 2012 season.

    So….

    “The players brought this on themselves, ”

    “yup, yup”

  47. broncfanor says: Apr 7, 2011 12:18 PM

    It’s amazing how quickly people forget it was the players who walked away and yet now it’s the owners fault. The players are trying to force the owners hand by going to court and they are right to not give in. If the players are serious about getting a deal done they would drop the sham of decertification and go back to mediation.

  48. whomiketodd says: Apr 7, 2011 12:23 PM

    @pfmadden

    The timing of the decertification isn’t the biggest reason its considered a sham. The Union has no intention of staying decertified. This is strictly a legal maneuver aimed at undermining the League. Yes they have every right to decertify, but if they do then they should not be allowed to reform for a minimum of 5 years. If they win out, get the result they want, then instantly reunionize then THAT is a sham.

  49. jlinatl says: Apr 7, 2011 12:59 PM

    A couple points

    1. Boies looks like Duck on Mad Men.

    2. The Owner’s statements today may be as much about trying to secure leverage in meetings in the event that both sides are ordered to mediate.

    3. Whereas I don’t care how the money is split because I am not getting any of it, it seems for the long term health of the league that it would be best for the owners to feel as if they won the financial portion. If the players “win”, we are likely to go thru this at the expiration of every CBA. If the owners “win” the financial split but compromise on the non financial issues, it would be very difficult for either side to walk away in future. The players would still be making great money and they will have received better health care etc. The owners would have gotten the split they desired. In the public eye, either side causing an issue at that point would likely have overwhelming public opinion against them.

    4. As to the thought that owners would beat down the players if there was no union, the 24 hour news cycle would police that issue. The real issue would be spiraling expenses as owners are forced to follow the lead of the most foolish amongst them. I would not anticipate the owners allocating those increase anywhere other than the fans.

  50. geo1113 says: Apr 7, 2011 1:09 PM

    I have a question to anyone who is an attorney. The prior CBA had provisions for opting out. If the lockout is lifted by the court, and there is no CBA and no union, are contracts negotiated under that CBA still binding?

  51. realitypolice says: Apr 7, 2011 1:09 PM

    @vetdana:

    Again, you miss my point. I understand it is not clear cut in the law whether process or fact can be reviewed. All I was saying was this site was doing a poor job describing the process to people who may not.

    The two statements, by the same writer, were direct contradictions.

    That was my point.

  52. 505phillyguy says: Apr 7, 2011 1:13 PM

    @tednancyWhy are the parties in court instead of at the bargaining table? Because the NFLPA sued the NFL, that’s why.

    The NFLPA are the plaintiffs, are they not? Last time I checked, when someone sues they are pursuing a litigation strategy. Don’t even attempt to spin this any other way.

    Nice try.
    ___________________________________

    Please…the owners knew that when they opted out of the CBA and instituted a lockout that the only option was litigation. That is the strategy that they chose over two years ago. That is why they chose to create an illegal litigation fund from TV revenues instead of investing the funds in growing the game.

    So, why won’t the owners negotiate a settlement of the dispute now? Could it be because they want to continue to pursue their litigation strategy?

    As I stated previously, the difference between collective bargaining vs. a negotiated settlement of the class action is merely a matter of semantics. Call it whatever the hell you want to do…in any case the two sides need to get together and come to an agreement. This is just another PR stunt by the league.

    As to all the people crying about the decertification being a sham, maybe it is but THE OWNERS WAIVED THEIR RIGHT TO ASSERT THE SHAM DEFENSE IN THE LAST CBA!!! It is a non-issue so quit whining about it.

    Face it, the league knows that they are going to lose in court but they are trying to act like they still have the upper hand. When they come to grips with reality they will get back to the bargaining (or settlement) table and get a deal worked out.

  53. pfmadden says: Apr 7, 2011 1:36 PM

    @whomiketodd – You’re missing the point. The NFL cant make the sham argument if the players file the suit 6 months after the CBA expiration. You’re arguing about why the NFL would win an argument they couldnt make. Assume, arguendo at least, the NFL loses. How does that change your approach?

    @tednancy –
    You didn’t actually state the reason for the 6 month requirement that I “conviently ignore.”

    The 6 month requirement was in the prior CBA. It isnt a rule of labor law. The “reason” it’s there is that the league wanted to keep the union from doing this, not indefinitely, but for at least 6 months. The 6 months is key because the league felt that come September, the League will have either a) broken the players union into submission or b) be on the verge of doing so since litigation would take another several months minimum.

    So as I said, there is no rule here that would prevent the players from decertifying and filing this suit after six months. What say you if you can’t make this “sham” argument? Players win? League wins?

    Scenario: league wins sham argument. players union is in effect, bargains for 6 months after March 8 or whatever, Fails to reach CBA. Decertifies in September. Now what? and don’t say “sham.” Say something that matters in that context since that was my point initially. It would be moot if one side or the other caves. But you should have an opinion on the underlying merits, no?

  54. tednancy says: Apr 7, 2011 2:04 PM

    pfmadden and phillyguy:

    You can call a cat a fish, but it will not swim.

  55. eagleswin says: Apr 7, 2011 2:17 PM

    505phillyguy says:

    Please…the owners knew that when they opted out of the CBA and instituted a lockout that the only option was litigation. That is the strategy that they chose over two years ago. That is why they chose to create an illegal litigation fund from TV revenues instead of investing the funds in growing the game.

    So, why won’t the owners negotiate a settlement of the dispute now? Could it be because they want to continue to pursue their litigation strategy?

    As I stated previously, the difference between collective bargaining vs. a negotiated settlement of the class action is merely a matter of semantics. Call it whatever the hell you want to do…in any case the two sides need to get together and come to an agreement. This is just another PR stunt by the league.

    As to all the people crying about the decertification being a sham, maybe it is but THE OWNERS WAIVED THEIR RIGHT TO ASSERT THE SHAM DEFENSE IN THE LAST CBA!!! It is a non-issue so quit whining about it.

    Face it, the league knows that they are going to lose in court but they are trying to act like they still have the upper hand. When they come to grips with reality they will get back to the bargaining (or settlement) table and get a deal worked out.
    —————————
    You are incorrect on many points.

    1. The owners opted out, that is true but a lockout is a valid legal negotiating tool, the same as if the players went on strike. The only thing that prevented negotiations was the litigation instigated by the former union.

    2. The owners prepared their businesses for the possibility of the lockout, much like the players union did. While they probably should have gone about it a different way there has been no proof yet that the players got a single penny less than what they are owed.

    3. The owners don’t want to negotiate a settlement because they would have to make further concessions to the players in order to not have a federal judge overseeing the CBA for the next 20 years. I’m still waiting for the NFLPA* to make a single concession. If the players waive their right to have the judge oversee the settlement, then I’d wager the owners would talk. The bottom line is the players pursued what should to prove be an illegal bargaining tactic and are still hoping to be rewarded by it.

    4. The owners have only waived the right to argue a sham argument only if the union decertified 6 months after the CBA. Their argument is valid as it hasn’t been 6 months. Please recheck your facts.

    5. The players walked away from the negotiating table, not the owners. As it currently stands there is little to be gained by the owners in settlement talks. They’d have to make more concessions to get rid of the judge. They’d have to concede that the decertification was valid (which it’s not) and that the lawsuit was valid. All things which put the owners at a disadvantage just because you want football.

    Let’s wait until the NLRB comes back with a yea or nay on the union decertification. If the NLRB says the decertification is invalid the antitrust goes away and the players have screwed themselves.

  56. Deb says: Apr 7, 2011 2:40 PM

    The players had no choice but to decertify after that proposal was delivered because it arrived within 12 hours of the lockout deadline. If they didn’t decertify within those 12 hours, the owners would have locked them out and they’d have had no way to fight the lockout for six months.

    We know the owners intended all along to lock out the players because they hired Bob Batterman, the attorney who orchestrated the NHL’s lockout, to lead their legal team and because they have been trying to illegally funnel joint revenues from the television contracts into a private lockout fund to sustain them while they bled the players.

    Those of you like the evil cow who keeps screeching about the players rotting might know some of this if you’d actually take time to study the issues rather than spending all your energy ranting about wanting 1700 men and their families to be unemployed.

  57. liontomyself says: Apr 8, 2011 1:27 AM

    Deb says:Apr 7, 2011 2:40 PM

    The players had no choice but to decertify after that proposal was delivered because it arrived within 12 hours of the lockout deadline. If they didn’t decertify within those 12 hours, the owners would have locked them out and they’d have had no way to fight the lockout for six months.

    We know the owners intended all along to lock out the players because they hired Bob Batterman, the attorney who orchestrated the NHL’s lockout, to lead their legal team and because they have been trying to illegally funnel joint revenues from the television contracts into a private lockout fund to sustain them while they bled the players.

    ———–

    OR….the players could have agreed to extend the deadline and negotiated a new CBA…….

    Wanting to extend the CBA……no matter when their last proposal was made…. to me, sounds like the owners were open to negotiating and not locking the players out…but….the players walked out and decertified.

    So, instead of shutting down, you think the owners should have made rules and continued business operations….or even continued old rules (the same old rules they are currently being sued for…draft, etc.) which would have opened them to even MORE anti-trust alegations?????

    Locking the doors was the only thing they could do after the union refused to negotiate.

    They HAD to shut down due to the decertification to prevent further damage.

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