During a 6:30 a.m. ET pre-coffee visit with our good friend Ross Tucker of Sirius NFL Radio, Ross pointed out a tweet he posted in the wake of the news that Judge Susan Nelson has lifted the lockout: “Maybe I just haven’t paid enough attention over the years but when is the last time the NFL/owners actually won a legal proceeding?”
It’s a good question, and I don’t know the answer.
Maybe it was the T.O. arbitration in 2005. Perhaps there have been some victories since then. If so, they’ve been obscured by a string of failures both under the expired Collective Bargaining Agreement and otherwise.
The problem traces to an apparently unrealistic assessment of the law, and lawyers who either can’t or won’t speak candidly with the owners about the weaknesses of the positions that the owners want to take. Billion-dollar businesses simply won’t lose that often and that decisively if they are crafting legal positions based not on what the law and the facts reasonably support but based on what the owners want.
We’re not prepared to place the blame for this on general counsel Jeff Pash. He may have tried at some point over the past few years to persuade the owners to be more objective and/or reasonable, pointing out the potential problems with the positions the league has taken. But the owners may have refused to listen, or they may have directly or indirectly suggested that, if Pash can’t or won’t argue what the owners want to argue, they’ll find someone else who will.
Regardless of whether Pash has tried to take a more balanced approach, the league has simply refused to acknowledge the possibility that the league could be wrong. Even a crushing, 9-0 loss before the U.S. Supreme Court in the American Needle case, which focused on the NFL’s long-held insistence that it is one business and not 32 separate ones for antitrust purposes, couldn’t snap the NFL out of it’s “we’re right and you’re wrong” mindset.
We’re confident that the league’s confidence regarding its ability to overturn the lifting of the lockout on appeal shows that the league has yet to revisit its broader legal strategies and attitudes. As we’ll explain at some point this morning, the league needs to realize that Judge Nelson turned what could have been a 20-page ruling into an 89-page opus in order to make it even harder for the league to secure on appeal the victory that it has presumed.
Until the league stops externalizing blame for its legal failures and starts acknowledging the reality that they have been far too aggressive and unrealistic in the positions they’ve taken, the losses will continue. If losing the appeal of Judge Nelson’s ruling doesn’t prompt the owners to develop more reasonable approaches to significant legal issues, perhaps nothing will.