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Players, owners should ignore lawyer rhetoric from today’s hearing

Paul Clement AP

Unfortunately, the NFL and the NFLPA* couldn’t kick the lawyers out of the room on Friday, because the room was a courtroom and someone with a law license had to stand up and argue the question of whether Judge Susan Nelson’s ruling that the lockout should be lifted should be overturned.

Even more unfortunately, the lawyers demonstrated how lawyers can muck things up by using language that possibly could undo some of the progress that has been made over the past couple of days.  In this regard, each side is guilty.

For example, NFL lawyer Paul Clement (pictured) reminded the three-judge panel that players have said the lockout is “the best thing that ever happened to me.”  Albert Breer of NFL Network reported via Twitter that the remark brought about a “big response” from the players, which conjured an image of loud murmuring that prompted the banging of a gavel and threats from the bench that the courtroom will be cleared.  (It apparently didn’t come to that.)

Seahawks guard Chester Pitts offered a retort via Twitter:  “Making the most of awful situation or being positive person should never be miscontrued with ‘enjoyment’ as it relates to being LOCKED OUT.”  (He’s right.)

Players’ lawyer Ted Olson provided similar verbal fodder for potentially pissing off the owners.  He accused the NFL of being an antitrust violation “recidivist,” and he claimed that the league’s contention that the decertification of the NFLPA is a sham borders on “unconscionability.”  (He’s wrong; though the players could win on that point, the NFL has advanced a good-faith argument in support of a finding that the decertification is a sham, and that the CBA didn’t prevent the NFL from making that argument.)

Clement kept at it on the steps to the courthouse after the hearing, contending that the recent settlement discussions in Chicago undermine the union’s decertification.  “I think there’s no question that to the extent with what’s going on is continuing negotiations,” Clement told reporters, via Breer.  “I think what that underscores is that the union has not disappeared forever.”

Apart from the possibility that Clement’s gratuitous bluster could cause the players’ to shy away from further negotiations, his contention could cause the players to dig in even deeper regarding their position that the union will not return, even if the pending antitrust lawsuit can be settled.

Clement’s words demonstrate that he simply doesn’t understand the mentality of football players.  Even if it’s in the best interests of the game for a union to be in place, Clement’s tough talk could be interpreted by players as a challenge, prompting them to refuse to reform a union if for no reason other than to prove Clement’s cocksure prediction completely wrong.  (In this regard, football players and Italians have a lot in common.)

Our advice to each side?  Ignore the things the lawyers said today and focus on continuing talks without the lawyers involved.  If nothing else, the rhetoric from Clement and Olson confirms the wisdom of trying to get something done without the barristers bollocksing everything up.

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50 Responses to “Players, owners should ignore lawyer rhetoric from today’s hearing”
  1. hobartbaker says: Jun 3, 2011 3:47 PM

    Olson’s body language as he dropped the “recidivist” word offended the owners, as he was hunched over in simian fashion, drooling, with his eyes crossed and his hands fondling his groin. Just in case anyone was unsure of the meaning of the word.

  2. bearskoolaid1985 says: Jun 3, 2011 3:49 PM

    No lawyer mean s a new CBA can be reached sooner rather then later and football can go back to the way the FAN’s want it.
    Negotiations should start TODAY. There is no reason in the world why it can not start TODAY.

  3. dasboat says: Jun 3, 2011 3:52 PM

    If Bye said that “neither side will like the ruling” that seems to indicate that there won’t be a sweeping victory for one side. I hope that accelerates the negotiations.

  4. WingT says: Jun 3, 2011 3:53 PM

    My advice to each side? Ignore all lawyers. Get rid of them. Stop litigating and get to negotiating.

  5. realfann says: Jun 3, 2011 3:54 PM

    After the last dispute the players reformed a union at the INSISTENCE of the owners who promised not to object if the players de-unionize again.

    The owners reneged on that promise.

    By the way, it is only the owners and their shills that make the totally unsubstantiated claim that a players union is required for there to be a successful NFL.

    A ridiculous claim with zero merit.

  6. vahawker says: Jun 3, 2011 3:55 PM

    Lawyers suck

  7. realfann says: Jun 3, 2011 4:00 PM

    I think the most likely outcome is that the judges will refuse to lift the lockout because that is beyond the jurisdiction of the court.

    But will offer the opinion that the union de-dertification is not a sham and therefore the lockout is most probably an anti-trust violation.

    A balanced judgement that will not favor either side in the labor talks.

    But will encourage the owners to negotiate for real before a court has a chance to rule on the anti-trust violation.

  8. awestcave says: Jun 3, 2011 4:00 PM

    People should ignore lawyer rhetoric, period.

  9. bronco1st says: Jun 3, 2011 4:01 PM

    How will neither side not like the ruling? They either lift the lockout or they don’t which will either make one side happy or not. What is the judge talking about – lifting the lockout on every even day and reimposing it on the odd days?

  10. upperdecker19 says: Jun 3, 2011 4:24 PM

    recidivist? Is Jackie Chiles from Seinfeld the co-counsel?

  11. vetdana says: Jun 3, 2011 4:25 PM

    DOES anyone know the extent of, and authority this court has,[ in this case], or does all of this yet have to be determined with more litigation, as another test case, and possible appeals process ?……..There is no end to legal Juris Prudence !….” I grow weary of the chase “!

  12. willycents says: Jun 3, 2011 4:36 PM

    @ realfann
    certainly the league will be successful without a union of players. All that they have to do is incorporate as a single employing entity with 32 divisions. (eliminates anti trust action) Then they can dictate salaries. require whatever the hell they want, and who got screwed? Let me think, the players.
    In that scenario, or the threat of that scenario, players like yourself would be running to re-certify the union faster than a coyote runs to a gut pile.
    IF the players ass’n continues the anti-trust action, count on the owners to do something dramatic to protect their businesses. I don’t have a clue what it might be, but, I am positive they have a plan, and I think they have each step in implementing that plan prepared. Remember, they are businessmen first, and probably cold hearted ones at that, and sports team owners second.
    IF the players push them to it, count on some sort of draconian environment for the players to work in, compared to the current one, for paybacks.
    I firmly believe that the owners planned for the de-certification of the union, and their response to that decertification.

  13. smacklayer says: Jun 3, 2011 4:45 PM

    @realfann: Go back the read the CBA you dumbazz. It actually prohibits the NFLPA from decertifying for 6 months after the expiration if the CBA, which why they decertified at 5pm before the CBA expired at 11:59pm that night. That language was supposted to PREVENT this from happening again.

    Secondly even if what you you say is true, wtf do you mean by “The owners reneged on that promise.” What do you want the owners to do? The players decertified and SUED the owners. What, you don’t think the owners should defend themselves in court? You expect them just to do whatever Demo wants?

    You are a class A moron and I highly suggest you go back and actually read the CBA and the history of this lockout until get the properspective on the realities of this situation.

  14. txchief says: Jun 3, 2011 4:49 PM

    Everybody dig in for the weeks to months that it will take for the court to rule. Just remember, it was the players that took this to the courthouse and have never made any counteroffers to the league.

  15. sl1111 says: Jun 3, 2011 4:49 PM

    realfann says:
    Jun 3, 2011 4:00 PM
    I think the most likely outcome is that the judges will refuse to lift the lockout because that is beyond the jurisdiction of the court.

    But will offer the opinion that the union de-dertification is not a sham and therefore the lockout is most probably an anti-trust violation.

    ——————

    This is incredibly insightful. I think you might be exactly right.

    Well done.

  16. jerrydesaulniers says: Jun 3, 2011 4:54 PM

    I say the Players replace DeSith with PacMan Jones.

  17. harmcityhomer says: Jun 3, 2011 4:57 PM

    @bronco1st

    Just a guess, but maybe what Judge Bye means is that the court may rule the lockout can stay in place “sufficiently distant in time and circumstances” but actually define when that time and circumstances are.

    Neither side would really win, but unless the lockout could continue indefinitly, it is not really “a tool to force negotiations” like Commish claims.

    Only reasonable offers are going to lead to a deal that both side can live with, but with the owners trying to use any sign of negotiations against the players, it does not look good for comprimise.

  18. tommyf15 says: Jun 3, 2011 4:58 PM

    The issue is really simple- owners cannot lockout a non-union workforce. It’s illegal.

    The function of this court is to enforce the law by lifting the lockout. It is not to referee the dispute between the owners and players.

    One more time- just make the owners adhere to the law by having them end the lockout.

  19. mackie66 says: Jun 3, 2011 5:18 PM

    I do hope the players continue down the road to employee suicide. Dig in and listen to the lawyers inside PFT, they cna snatch defeat from the jaws of victory.

  20. txchief says: Jun 3, 2011 5:20 PM

    I think Olson may also have flung some feces towards the owners and judges during the hearing.

  21. melonnhead says: Jun 3, 2011 5:30 PM

    Seahawks guard Chester Pitts offered a retort via Twitter: “Making the most of awful situation or being positive person should never be miscontrued with ‘enjoyment’ as it relates to being LOCKED OUT.” (He’s right.)

    Then again, maybe players shouldn’t characterize bad things like a lockout as the best thing that ever happened to them if they don’t like it so much (I’m right too).

  22. jtfris says: Jun 3, 2011 5:32 PM

    Well written. Even handed for a change.

  23. hooky40 says: Jun 3, 2011 5:48 PM

    realfan,

    The owners, in the last CBA, gave certain conditions to not objecting to the union decertifying again this time around, I believe the stipulation was that the union must wait 6 months after the expiration/opt out of the last CBA and the players agreed to it. They decertified before the agreed upon time frame, violating the agreed upon stipulation in the CBA. That clearly puts the sham argument back into play and was done BY THE PLAYERS, not the owners. They clearly breached that section of the CBA and gave up their right to claim that the decertification was not a sham. They did exactly the opposite of what their contract compelled them to do. They are in the wrong and are going to lose this argument, especially in the more conservative 8th circuit. Stop trying to throw the owners under the bus for protecting their right to defend themselves from a lawsuit that the players brought on.

  24. tommyf15 says: Jun 3, 2011 5:52 PM

    willycents says:
    @ realfann
    certainly the league will be successful without a union of players. All that they have to do is incorporate as a single employing entity with 32 divisions.

    Given the Supreme Court’s ruling in the American Needlepoint antitrust case that was decided just last year, the owners can’t do that.

    Not only can’t they do it, most of them wouldn’t want to. Did you really think Jerry Jones would give up owning the Dallas Cowboys to own 1/32th of that thing?

  25. agnt28 says: Jun 3, 2011 5:55 PM

    Also important to note the context of the Clement comment about the players enjoying the down time. It came up during a discussion that followed a relatively mild question about whether or not the lockout causes players irreparable harm due to their inability to access to the facilities.

  26. realfann says: Jun 3, 2011 6:09 PM

    @willycents

    You are incorrect. Anti-trust would still apply if the 32 seperate NFL businesses reformed into one.

    The reason being that the monopoly still exists.

    If you wish to remove anti-trust, a better suggestion would be that 16 teams form one league and the other 16 form a completely independent one.

    The players would then have a free choice which league to play for.

    Just like all of us can chose where we work.

  27. liquidgrammar says: Jun 3, 2011 6:14 PM

    @williecents – if the owners are as smart as you claim, there’s no way in hell they would try to institute those rules!! If they try, every athlete even remotely considering playing football will change sports faster than Bush stopped looking for bin Laden!!! Then what happens to their precious little business??!!

  28. geo1113 says: Jun 3, 2011 6:19 PM

    tommyf15 says:
    Jun 3, 2011 4:58 PM
    The issue is really simple- owners cannot lockout a non-union workforce. It’s illegal.
    ___________________

    Can you cite the law and regulations to back that up?

  29. geo1113 says: Jun 3, 2011 6:23 PM

    tommyf15 says:
    Jun 3, 2011 5:52 PM
    willycents says:
    @ realfann
    certainly the league will be successful without a union of players. All that they have to do is incorporate as a single employing entity with 32 divisions.

    Given the Supreme Court’s ruling in the American Needlepoint antitrust case that was decided just last year, the owners can’t do that.

    Not only can’t they do it, most of them wouldn’t want to. Did you really think Jerry Jones would give up owning the Dallas Cowboys to own 1/32th of that thing?
    _________________________

    Can you cite where in American Needle it says they can’t incorporate?

    Also, if they did incorporate, why would Jerry Jones only get 1/32 of the league? Wouldn’t he more likely get stock in proportion to the value of the asset he has contributed to that new company?

  30. realfann says: Jun 3, 2011 6:24 PM

    So the owners would be OK if the players de-unionized in August but are totally opposed to them decertifying in March?

    Nope. A year from now, two years from now, the owners will still be trying to force the players to unionize.

    The facts remains that as a condition to reforming the union against the wishes of the players, the owners previously agreed not to challenge any future de-certification.

    They are reneging on that agreement.

    The fact that they are using a set of weasel words they inserted into the old CBA doesn’t make what they are doing right. Just underhanded.

    It’s highly amusing so many folks here that bash the unions support the owners using the courts to force the players re-unionize against their wishes.

    It’s highly amusing these folks rip the old CBA because it was so unfair to the owners yet are willing to quote it word for word when it suits the owners.

    It’s highly amusing the folks that say lawyers & the courts are getting in the way of an owner dictated settlement, yet spend so much time cheering on judges that rule in their favor.

    Most amusing.

  31. tommyf15 says: Jun 3, 2011 6:51 PM

    hooky40 says:
    The owners, in the last CBA, gave certain conditions to not objecting to the union decertifying again this time around, I believe the stipulation was that the union must wait 6 months after the expiration/opt out of the last CBA and the players agreed to it. They decertified before the agreed upon time frame, violating the agreed upon stipulation in the CBA. That clearly puts the sham argument back into play and was done BY THE PLAYERS, not the owners. They clearly breached that section of the CBA and gave up their right to claim that the decertification was not a sham. They did exactly the opposite of what their contract compelled them to do.

    If this were the case, wouldn’t the owners be making this argument?

    Here’s what the CBA says, bolding mine:

    Following the expiration of the express term of this Agreement, then, if the NFLPA is in existence as a union, the Parties agree that none of the Class Members (as defined in the Settlement Agreement) nor any player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for conduct occurring, until either: (i)
    the Management Council and NFLPA have bargained to impasse; or (ii) six (6) months after such expiration, whichever is later; at that time, the Parties reserve any arguments they may make regarding the application of the
    labor exemption.

    The part I bolded clearly indicates that the players had the option of decertifying before the agreement expired.

  32. tommyf15 says: Jun 3, 2011 6:53 PM

    geo1113 says:
    you cite the law and regulations to back that up?

    I can but I choose not to. After all, if you’re capable of posting here, you’re capable of researching it yourself.

  33. Deb says: Jun 3, 2011 7:04 PM

    It’s a futile hope, I know, but it would be nice if all the dimwits who’ve been screeching for the players to “make a counteroffer” and “come back to the negotiating table” :roll: were paying attention. The first time they make a positive move in that direction and what happens? The NFL’s lawyer runs into a courtroom and screams that they’re violating their decertification.

    That is why the players have not been working with the owners, folks. The owners will not negotiate in good faith. Obviously the Chicago episode was a trick to draw the players into talks, then sucker-punch them in court. Screw that.

    And Mike, I appreciate you trying to be even-handed, but calling a strategy borderline unconscionable doesn’t come close to luring players into talks for the sole purpose of using it against them in court the next day.

    How can the players possibly ignore Clemment’s comments? They know if they attempt to continue negotiating, the owners will use it against them, just as they did today. No depths are too low for some people to sink to get their way.

  34. palinforpresidentofnorthkorea says: Jun 3, 2011 7:19 PM

    There will be football games when:

    High School games begin

    The UFL plays (sorry realfanny, but there is another league you dolt)

    The CFL plays

    NCAA, JUCO, and semi-pro leagues play

    and when De Mo Reece* realizes there is no NFL football until the owners start the season. Of course, that requires De Mo to settle/withdrawal which he can’t/won’t do.

    There will be no NFL football until the players* agree to an offer from the owners. That’s the cold reality, De Mo Reece*, realfanny, Drew, Tommy and all the NFL players & agents who post on this site.

    Or – when the players* form their own league. Soon followed by their desire to stick it to their new owners (themselves!).

  35. willycents says: Jun 3, 2011 7:20 PM

    liquidgrammar says:Jun 3, 2011 6:14 PM

    @williecents – if the owners are as smart as you claim, there’s no way in hell they would try to institute those rules!! If they try, every athlete even remotely considering playing football will change sports faster than Bush stopped looking for bin Laden!!! Then what happens to their precious little business??!!
    ————————————————
    Yup, I buy your argument. I am certain that Ray Lewis will change to playing tennis, Drew Brees will jump to lacross, Cam Newton will play basketball, and Julius Peppers will take up competitive bridge. And you will abandon watching football for watching competitive tiddleewinks…oh, wait…..lol

  36. txchief says: Jun 3, 2011 7:25 PM

    Deb, you know not with who you are dealing when you insult others. Relax and get some purple drank on. By the way, what’s your jersey number?

  37. truenblue says: Jun 3, 2011 8:01 PM

    — So the owners would be OK if the players de-unionized in August but are totally opposed to them decertifying in March?

    Nope. A year from now, two years from now, the owners will still be trying to force the players to unionize. —-

    The hilarious thing is listening to all the AM Talk Radio zombies claim that everyone who supports the players is “pro union, anti- free market capitalism’.

    When in fact what the players are asking for is not to be represented by the union and to inject more free market capitalism into the NFL.

    While the owners are arguing to force players into a union against their will and for there to be more “communism” and “socialism” in the NFL’s business model.

    Gotta love the AM Talk Radio Zombies, they supplied endless amounts of unintentional comedy into what otherwise would have been a long, dull offseason.

  38. tommyf15 says: Jun 3, 2011 8:09 PM

    @Deb:

    If you’ve read my posts here, you know that I’m not just another pro-owner drone.

    Having said that, the players can’t have it both ways. They can’t be a union when it fits their purposes, and a non-union when it doesn’t. DeMaurice Smith should have been sending a clear, consistent message: “we’re no longer a union”.

    Marvin Miller is the greatest and most effective labor leader in sports history, and a big reason for that is that Miller ran on principle he wanted a free market, and there wasn’t a dollar amount he’d ever accept from the owners to give it up.

    Donald Fehr succeeded Miller, and he had the same principles as Miller.

    During the 1994 Baseball strike the baseball owners desperately wanted a salary cap and NFL-type system where the players and owners shared revenue. The owners begged Fehr to name a percentage- seventy percent? Eighty percent? What’s it going to take?

    Fehr said no, and used an analogy: a man walks up to a woman and offers her a million dollars to sleep with him. She accepts, and the man then says “how about for ten dollars”?

    The woman asks if he’s crazy, and the man says no- now that we’ve established what you are, now we just need to establish a price.

    DeMaurice Smith needed to embrace decertification and a free market as a matter of principle. He didn’t, and now he may pay for it.

  39. geo1113 says: Jun 3, 2011 8:12 PM

    tommyf15 says:
    Jun 3, 2011 6:53 PM
    geo1113 says:
    you cite the law and regulations to back that up?

    I can but I choose not to. After all, if you’re capable of posting here, you’re capable of researching it yourself.
    ____________________

    I did read the law and the regulations. In no place did I see the words that you stated were there. That is why I asked you.

  40. geo1113 says: Jun 3, 2011 8:31 PM

    Deb says:

    Obviously the Chicago episode was a trick to draw the players into talks, then sucker-punch them in court. Screw that.
    ____________________

    Deb, please don’t make stuff up. You lose credibility. PFT had a story yesterday saying that the parties were brought together at the urging of Arthur Boylan.

  41. lostsok says: Jun 3, 2011 8:47 PM

    “txchief says: Jun 3, 2011 7:25 PM

    Deb, you know not with who you are dealing when you insult others. Relax and get some purple drank on. By the way, what’s your jersey number?”

    Deb made an articulate post. You made a pointed personal attack from the mental level of a 3rd grader.

  42. gdpont says: Jun 3, 2011 9:14 PM

    Based on the judge’s comment that neither side will like the court’s decision, I predict that we are about to see the court of appeals punt the case back to Judge Nelson and instruct her to conduct a full blown evidentiary hearing and then decide whether to lift the lockout. Courts of appeal can be reluctant to base important legal rulings on an incomplete evidentiary record and this will give the judges the chance to do their favorite thing, avoid a decision whenever possible.

    This new level of uncertainty may motivate both sides to reach an agreement, but hopefully, not before the end of the preseason, because those games are a total waste of time and my money!!!

  43. tommyf15 says: Jun 3, 2011 9:35 PM

    geo1113 says:
    I did read the law and the regulations. In no place did I see the words that you stated were there.

    You read all of them? Really?

    And here’s a guy preaching about “not making stuff up”.

    Seriously, it’s prominently mentioned in several articles that cover the NFL lockout, and the NHL lockout that took place a few years ago. The NHL players had to continue “negotiating in good faith”or the owners would be allowed to bring in replacement players, which many suspected was the owner’s strategy.

  44. tommyf15 says: Jun 3, 2011 9:45 PM

    I need to clarify something in my previous post- if a union fails to “negotiate in good faith”, a mediator can declare that a lockout has become a strike, and at that point replacement workers can be brought in.

  45. hobartbaker says: Jun 3, 2011 10:00 PM

    Turns out the “big response” from the players attributed to Clement’s words was innocuous. It just happened that one of the guys asked what kind of pie everyone wanted for lunch, and they were all answering “rhubarb, rhubarb, rhubarb” at the same time.

  46. Deb says: Jun 3, 2011 10:17 PM

    @lostsok …

    Thank you. I couldn’t even make sense of what txchief was blabbering. It seems he’s already been at the grape.

    @geo1113 …

    I didn’t make up anything–Mike has written that the owners’ attorney used that negotiation against the players. Just because Boylan urged them to get together does not mean the owners didn’t take that opportunity to sucker-punch the players. Many parties have urged them to get together since this impasse began. The players obviously tried to negotiate in good faith. Clearly the owners did not when their attorney stood on the courthouse steps immediately afterward and used the negotiation to undermind the players’ position. That was a shot across the bow. Next time he’ll make that argument to the judge.

    I’d question your credibility since you’ve chosen to ignore the direct quote from Clement in favor of a fairytale view of the owners.

    @tommyf15 …

    Yes, I’m familiar with your posts. I know you’re not just cheering on the owners.

    At the end of the day, De Smith has to represent the interests of the players. I have never believed the end game of the players was to finish this hand. I don’t think they want decertification and a free market, so Smith can’t embrace it on principle, full steam ahead. He’s got to leave the door open to negotiating, which weakens his position and leaves him vulnerable to attack on sham decertification. However, I do believe he’ll push this thing to the limit if necessary–that’s where the owners are being foolish. Smith would rather broker a deal, but he won’t crawl to do it.

    Were the owners acting disingenuously when they agreed to that Chicago meeting? I don’t know. But if they were serious about working out a deal, they’d better rein in their pitbull Clement.

  47. txchief says: Jun 3, 2011 10:38 PM

    Oh Deb (and lostsok), I’m so crushed and devastated. I can’t live without your approval, and I cannot go on. I guess that a third grade level must be the highest level of education that you can appreciate. So long cruel world…

  48. southmo says: Jun 4, 2011 12:15 AM

    Wow.

    We have Deb forgetting that the NFL already stipulated that any negotiations or counter-offers would not be held against the NFLPA. And she called all of us dimwits for not forgetting that along with her.

    We have realfann arguing for changing the NFL into 2 separate, completely independent leagues with different rules, different standards, and evidently either no draft or two competing drafts that would be meaningless since the draftee would simply sign with the highest bidder anyway… LOL And again my response is… really? I kinda liked the NFL of the last 12 years and would rather we NOT destroy it. But hey, at least we know realfann isn’t a real fan of the NFL as we’ve all known it.

    And we have tommyf15 citing the CBA but not realizing that the very section he quoted (which reads differently than the same section quoted by PFT) only keeps the owners from challenging it as a sham if the players waited until after the CBA expired AND waited 6 months. They did neither. At least that’s the argument the owners are making.

    So in answer to the question, yes, the owners have and are making that argument.

    Great fun tonight.

  49. Deb says: Jun 4, 2011 4:47 PM

    @txchief …

    Bye :D

  50. Deb says: Jun 4, 2011 4:49 PM

    @southmo …

    Seems like the owners forgot that stipulation as well since Clement was arguing on the courthouse steps that by negotiating they’d violated their sham decertification. Did you miss that? Gee whiz … that was the best part.

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