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Wrapping up class action continues to be a potential impediment

James Quinn and Jeffrey Kessler, attorneys for the NFL Players Association enter a federal courthouse to resume court-ordered mediation in Minneapolis Reuters

Monday began with ESPN’s Chris Mortensen and Adam Schefter staking out the front spot on the first-to-report-an-end-to-the-lockout line, explaining that the NFL hopes to ratify a new labor deal on July 21 and that “many people” expect a deal to be completed by then.  (And if it doesn’t happen, they can then say, “Hey, we never reported that it was definitely going to happen.”)

If it doesn’t happen, one potential reason for it could arise from the process of wrapping up the Tom Brady class action.  Daniel Kaplan of SportsBusiness Journal reports that the players’ lawyers are pushing for the class to be certified, which means that Judge Susan Nelson would wave her legal wand and find that the players are bound together for the purposes of pursuing antitrust claims against the NFL.  (Or she could find that the class isn’t suited for certification.)  Kaplan explains that the strategy would be aimed at insulating the players from a future claim that decertification is a sham, if the players once again decide at some point to shut down the union and sue, when faced with a lockout.

But that’s an issue that would seem to be more easily addressed via the terms of the settlement, like it was in 1993.  And if the players hope to completely foreclose the sham argument this time around, the Brady settlement should be far more clear in the timetable for shutting down the union and filing suit.

It could be that the players’ lawyers, led by Jeffrey Kessler and Jim Quinn (pictured), are using the certification process as leverage to get the league to agree to permit the players to pull the same maneuver in the future, with the use of language that makes it easier to decertify and sue before the expiration of the CBA.  Or it could be that Kessler and Quinn are pushing certification since it would delay the process, making it more likely that the players will opt to permit Kessler and Quinn to pursue that $12 billion antitrust verdict, which can happen only if a full season is missed.

Regardless of whether the class is or isn’t certified, the Federal Rules of Civil Procedure plainly state that any resolution of a class action must be approved by the court, even if the class action is voluntarily dismissed.  It’s believed that the union would first be resurrected before the settlement is presented to Judge Nelson for approval.  Even then, however, current players would have a right to object to the settlement, even if none of them are inclined to exercise that right.

Then there’s the revised Carl Eller class action.  Even though the retired players seem to have no legal standing to prevent the NFL and the current players from working out a new labor deal, Judge Nelson can’t simply disregard the Eller lawsuit simply because it is slowing down the return of football.

And while much of the Eller lawsuit borders on the frivolous (sorry, Jeff Nixon, but it’s true), the contention that a decertified NFLPA is behaving as a labor union — and that the NFL is collectively bargaining with a trade association — could be problematic, if anyone with actual standing to challenge this thing actually challenges it.

Most simply assume that, once the more challenging task of getting the league and the NFLPA* to agree on a revenue split, a rookie wage scale, and the terms of free agency, everything else will fall into place.  In the end, it may not be as easy as it looks.

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6 Responses to “Wrapping up class action continues to be a potential impediment”
  1. enfuego2000 says: Jul 11, 2011 10:15 AM

    Whatever the circumstances the deal is done July 21st. The true drop dead date.

  2. darvon86 says: Jul 11, 2011 10:19 AM

    I thought that Eller & co were ADDED to the Brady class by Judge Nelson back in April when she combined the cases against the NFL. Need lawyer expertise here.

  3. pftstory says: Jul 11, 2011 10:30 AM

    Its either a union or its not. Sure the law allows them to decertify so they can do things a union cant, then recertify so they can do things a non- union cant.

    Does that just make the laws horse bunk?

    Its the same operation operating for the same purpose under two different identities.

    Anyone think we need a re-write of the laws to allow the focus to be on the issues and not if the parties involved followed the correct dance steps?

    The NFL and all sports leagues are not the same types of business as Home Depot. They have a vastly different purpose and business model when in comes to the competition.
    The NFL union, and all sports unions, are not the same as the AFL-CIO or a teachers union. They have a vastly different purpose when it comes to negotiating for its members.

    There should be different laws that apply to both.

  4. pfatl says: Jul 11, 2011 10:30 AM

    This article makes no sense. The NFL wants to bind the players to the result of the negotiations. The only way for the NFL to do this is to certify the class. In order for the litigation angle to be put to bed, the class must be certified. Otherwise, the settlement is only between the owners and the named plaintiffs.

    The way this is customarily done is that the settlement proposal that is put before the judge contemplates a settlement class that has been stipulated to by the parties. The judge then, in granting the motion for approval of the settlement, certifies a “settlement class.” In doing so, all members of the class are bound to the settlement.

    This is a complete non-issue and is standard practice.

  5. tomsd1 says: Jul 11, 2011 11:13 AM

    Forget all this legal mumble jumble.

    Rookie Judge Suzy already showed she doesn’t know beans about the law, and was thoroughly dressed down by the 8th Ct of Appeals.

    Moreover, the Owners aren’t going to agree to anything the Brady renegades want to do – and that “class action” problem will be “solved” before a new CBA is ratified.

  6. ktcmoving says: Jul 11, 2011 12:29 PM

    “Monday began with ESPN’s Chris Mortensen and Adam Schefter staking out the front spot on the first-to-report-an-end-to-the-lockout line, explaining that the NFL hopes to ratify a new labor deal on July 21 and that “many people” expect a deal to be completed by then. (And if it doesn’t happen, they can then say, “Hey, we never reported that it was definitely going to happen.”)”

    – You mean like when you made your prediction? What was it, June 20th? How did that turn out?

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