One of the best things about doing radio spots is that the discussion often gives me the kind of clarity that merely sitting at the keyboard doesn’t. That’s exactly what happened earlier today, when I chatted with Howard Balzer of 101 ESPN in St. Louis.
With Judge Kermit Bye strongly suggesting that neither side will like the ruling that the U.S. Court of Appeals for the Eighth Circuit renders and with NFL lawyer Paul Clement being peppered with questions about the possibility that the non-statutory antitrust exemption lasts for only six months after expiration of the Collective Bargaining Agreement, the discussion with Balzer has helped me finally figure out how precisely how the Eighth Circuit could issue a decision that no one likes.
First, the Eighth Circuit would rule that the Norris-LaGuardia Act prevents courts from issuing injunctions aimed at ending any lockout or strike arising from a “labor dispute,” with that term being given a broad interpretation that would apply even after the decertification of a union, legitimate or sham. This would allow the current lockout to proceed, indefinitely.
Second, the Eighth Circuit would rule that the non-statutory antitrust exemption lasts for only six months after expiration of the CBA, given the specific term in the expired labor deal requiring the players to wait six months before filing an antitrust lawsuit. Given the Norris-LaGuardia Act, this wouldn’t end the lockout as of September 11, the day on which the first slate of Sunday games are due to be played. However, it would expose the NFL to treble damages beginning with Week One of the regular season, if the lockout ultimately is determined to be an antitrust violation as of September 11.
Thus, the owners would be able to lock the players out for all of the 2011 season, but the owners would ultimately be responsible for the full player payroll in 2011, times three. That’s an amount that easily would exceed $10 billion.
Such an outcome would place significant pressure on both sides. Though the players possibly would eventually get paid — three times over — for the money lost via the loss of a full season, the promise of treble damages won’t make a single mortgage payment for any of them in 2011. It also won’t replace something far more important to high-level players like Peyton Manning and Tom Brady, who don’t need the money but who crave more Super Bowl rings.
It still makes far more sense for the parties to control their mutual destiny and reach a deal before the Eighth Circuit issues a ruling, given the chance that the ruling actually will be something that one side really likes — and that the other side really hates.