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Reluctance to reconstitute union is another red herring

At the top of the hour on ESPN, Sal Paolantonio reiterated what we’ve been saying for weeks:  “We keep hearing from a lot of owners here that . . . Jeffrey Kessler is holding up this deal.”

Kessler apparently is holding up the deal in one way by ignoring all modern means of communication to insist on sending out union cards in the mail for players to sign and return.

There’s another Kessler tactic that continues to find willing soil.  As Chris Mortensen of ESPN mentioned moments after Paolantonio’s report from Atlanta, some of the players meeting in Washington are reluctant to reformulate the union.

To borrow a quote from Stanley Hudson, “Have you lost your damn mind?  Because I’ll help you find it.”

This deal won’t work — it can’t work — without the union being reconstituted.  Without the protection against antitrust litigation that a multiemployer bargaining unit provides, the NFL will be immune to antitrust attack from future players.

With the rookie wage scale sucking away roughly half of what Cam Newton made in comparison to Sam Bradford’s rookie contract, Andrew Luck would be able to sue the league, claiming that the draft is an antitrust violation.  And the league would have to defend the case on the merits, because there would be no antitrust exemption in the absence of a union.

In 1993, the lawyers (cough . . . Kessler . . . cough) failed to insert clear language into the Reggie White settlement agreement that would have allowed the union to decertify and file an antitrust suit the day that the deal expires.  As a result, it gave the league an opening to argue that the decertification was a sham.

So the fix is simple.  This time around, include language that better preserves the union’s ability to shut down and file suit if/when the owners back the players into a corner 10 years from now, or later.

To make it work, the league needs to be willing to include such language in the settlement.  And if the league isn’t, then that’s the kind of information Kessler should be leaking to the likes of Ron Borges.

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59 Responses to “Reluctance to reconstitute union is another red herring”
  1. siggy00 says: Jul 21, 2011 2:25 PM

    April Fools!

    Bye bye 2011 season.

  2. skoobyfl says: Jul 21, 2011 2:26 PM

    Why would the lawyers want a deal to get done?? Litigate, debate & earn is what they teach them. The settlement has to come with a pound of flesh for the lawyers to engorge on.

  3. benh999 says: Jul 21, 2011 2:28 PM

    For the past several months you’ve been all but parroting the players paper thin mantra of “let the players play.” Are you finally realizing that the lockout was instituted to protect the league from player lawsuits, not punish them?

  4. gamecheck1 says: Jul 21, 2011 2:28 PM

    What else would one expect. There is always one jack nut that thinks he’s bigger and better than everyone else!

  5. derekjetersmansion says: Jul 21, 2011 2:29 PM

    It’s true some players don’t want to recertify, but only because of the drug and conduct policies. Obviously, not enough for a majority.

  6. capslockkey says: Jul 21, 2011 2:31 PM

    Let’s go Mr Brees. Let’s step up to the plate and stand behind your words of “we just want to play football” and maybe slip a ruffie into Mr. Kessler’s coffee mug so we can get on with it already.

  7. dequan81 says: Jul 21, 2011 2:33 PM

    Before, this thing was about the money, we kept hearing the “players are making to much”, “the owners are greedy” and on. Now the deal is in jeopardy because they can’t seem to reconstitute a union, that never should have decertified in the first place? Really? The players are really proving that they are no more qualified to claim they and the NFL are partners than you or I do. Little kids playing a big game. They need to continue to just play ball, on the field.

  8. bearskoolaid1985 says: Jul 21, 2011 2:33 PM

    How many times do I have to beat this drum.
    Kessler (THE NFL/NBA HATING LAWYER) has is own agenda and it is in no way for the good of the game and no way good for the fans who support this great game.
    FIRE Kessler now.
    The individual players all 2000 need to start making there thoughts be heard that they want football and they want Kessler gone.

  9. b1ackr0ck says: Jul 21, 2011 2:34 PM

    This guy is so out of touch that I wouldn’t be surprised if he called a press conference in his driveway and started doing pushups!

  10. awestcave says: Jul 21, 2011 2:35 PM

    Maybe before voting, the players should stop for about five minutes, and just think about Major League Baseball in 1993 and Major League Baseball in 1995 and what happened in between that made all the difference.

    I – and I’m sure many, many others – are seriously on my last leg with these guys. If something’s not done by the end of tonight, I’ll turn my interests elsewhere.

  11. trbowman says: Jul 21, 2011 2:37 PM

    Kessler looks like he got bullied a lot in high school, and now he’s trying to get back at the jocks who bullied him by destroying football.

  12. clivus63 says: Jul 21, 2011 2:37 PM

    These people are stupid enough to let $9 billion slip through their fingers.

  13. daburgher says: Jul 21, 2011 2:38 PM
    212 259 8050

    here is contact information

  14. sj39 says: Jul 21, 2011 2:39 PM

    Ya know, I’m at the point of I’d rather see the season lost than have the game eff’d up beyond recognition as we know it by some stupid lawyer.

  15. menentj says: Jul 21, 2011 2:39 PM

    What I don’t understand is if this damn idiot Kessler, is a HIRED attorney on behalf of the NFLPA*, why can’t Smith shut him the hell up??

    He’s gone against Smith himself with all of these games and obstacles he’s put up.

  16. berniemadoffsides says: Jul 21, 2011 2:40 PM

    Someone please put a Massaquoi jersey on Kessler and send him over the middle of James Harrison’s front lawn…

  17. hobartbaker says: Jul 21, 2011 2:40 PM

    Reluctantly regurgitated in a reconstituted form that even crows wanted nothing to do with.

  18. benacci says: Jul 21, 2011 2:42 PM

    Im sure this could be done over Twitter!

  19. bquinn55 says: Jul 21, 2011 2:42 PM

    It is hot as hell on the east coast today, my head is spinning from all this info coming in on the deal, but for crying out loud…. GET IT DONE!!!

  20. rpiotr01 says: Jul 21, 2011 2:43 PM

    All this comes down to one thing: De Smith needs to control Kessler. Negotiations etc. are OVER. It’s time to vote it up or down.

    So here are my words to De Smith, to quote what Axl Rose once said to Kurt Cobain: “Why don’t you shut your b!tch up?”

  21. hobartbaker says: Jul 21, 2011 2:45 PM

    Stuck in the no fly zone between “decertified” and “recertified”, the union leaders finally ended up just being “certified”.

  22. derekjetersmansion says: Jul 21, 2011 2:46 PM

    @ awestcave

    Baseball is going to pass the NFL in total revenue next year, no matter what.

  23. cowboysfan18 says: Jul 21, 2011 2:48 PM

    (Sigh), I wish…I mean I was hoping…I mean…never mind, I’ve run out of words and sadly I’m running out of hope.

  24. deweyaxewound says: Jul 21, 2011 2:49 PM

    So in other words, to breal this down to its simplest, most understandable terms:

    Unions ruin everything.

    And whatever unions don’t ruin, LAWYERS certainly will.

  25. vtsquirm says: Jul 21, 2011 2:50 PM

    forget the players. hire replacements and lets play some ball! I’ll still watch. Replacements may even be an improvement for my Redskins!

  26. Kaz says: Jul 21, 2011 2:51 PM

    If the Owners walked away from negotiations I’d support them 100% at this point.

  27. pacificnw7722 says: Jul 21, 2011 2:51 PM

    “Kessler apparently is holding up the deal.”

    How in the hell can ANYONE believe that Kessler can help with this??

    FIRE this Parasite!

    Man up Brees.

  28. ahgeez says: Jul 21, 2011 2:51 PM

    An Office quote.. Mike, well done.. Well done.

  29. daburgher says: Jul 21, 2011 2:52 PM

    just saw d smith live on tv… he seems dumber and most of the players… not a good look

  30. endzonezombie says: Jul 21, 2011 2:52 PM

    I am in favor of losing the 2011 NFL season so that college football gets 100% of the football fan focus. At one time eons ago, college football had much greater fan interest than the NFL. A renewed focus might create a stronger push for a playoff system to replace the ‘corrupt’ BCS fat-daddy system for crowning a national champion. Something good should come out of a cancelled NFL season – lower prices to win back the fans who defect to their favorite college teams.

  31. erfoster says: Jul 21, 2011 2:53 PM

    i’m starting to agree with the folks that say the players really do want to miss training camp time. i’m 45 minutes away from where the steelers hold camp and it’s 95 freakin degrees out! just sayin.

  32. coqui4 says: Jul 21, 2011 2:54 PM

    There needs to be a concentrated effort to flood Demaurice Smith’s email with messages saying to get rid of Kessler. OR MAYBE the media needs to do that on behalf of the people.

  33. dashrews says: Jul 21, 2011 2:54 PM

    ITs 2011…its called an Electronic Signature! Get it done already!

  34. lion95 says: Jul 21, 2011 2:56 PM

    Is any of this a surprise? Half of these players IQ’s are smaller than their shoe size. They’ve had 5 months to decide whether or not they want to be a union again and now on the day of the vote, they bring up this monster issue. What a greedy and incompetent group of d-bags.

  35. makimaguro says: Jul 21, 2011 2:57 PM

    Who pays Smith and Kessler if there is no union? I’m assuming they were hired by the union?

    Maybe the players will start an entire new union…

  36. supashug says: Jul 21, 2011 2:58 PM

    I love herring

  37. cam3420 says: Jul 21, 2011 2:59 PM

    and noone has a gun to permanently shut this guy up? i think anyone who gets in the way of this deal should be pistol whipped and if they still cant shut up bullet right between the eyes usually works

  38. galactico18 says: Jul 21, 2011 2:59 PM

    It’s amazing that during a “lockout” the players are the ones that everyone is turning against. It really shows how poorly this has been handled by the NFLPA.

  39. tommyf15 says: Jul 21, 2011 3:04 PM

    Golly, I thought the posters here HATED unions!

    Shouldn’t you then LIKE Kessler for trying to stop one from getting established?

  40. red2redman says: Jul 21, 2011 3:04 PM

    The players association needs to realize the more you drag this thing out the more you lose fans. You remember the fans the ones that pay the bills. Fans are reason you can have million dollar homes, 5 or 6 cars. SO THEY NEED TO GET THE S*** DONE!!! This is coming from someone that has supported the players throughout but this is getting ridiculous!!!

  41. siggy00 says: Jul 21, 2011 3:08 PM

    OK…so the CBA can’t be done without a players Union, and the players are having reluctance to re-form.

    The owners should just say “OK, when you decide let us know, we’re going home”.

  42. bpfpft says: Jul 21, 2011 3:09 PM

    A little turbulance before landing.

  43. tomnickle says: Jul 21, 2011 3:09 PM

    The players have been the problem from the beginning. They are quick to strike when they don’t have what they determine to be a fair deal but refuse to negotiate for months when the shoe is on the other foot.

    Put up or shut up. The owners have reportedly softened their stance on a great number of issues. The rights of first refusal, franchise and transition tags, the eighteen game schedule, otas, training camp practices and raising the cap floor.

    I think it’s time that you players start to make some concessions. The owners have, BECAUSE THEY WANT FOOTBALL and the money that comes with it. You players say you want football, prove it.

  44. eatingcereal says: Jul 21, 2011 3:10 PM

    I woke up this morning thinking that both sides would vote to end the lockout, but the more this day drags on, its seeming more and more like this could go on for a little while and potentially cost us some games

  45. mook68 says: Jul 21, 2011 3:12 PM

    I thought this Kessler works for the NFLPA. I must have missed the memo.

  46. m2karateman says: Jul 21, 2011 3:12 PM

    Why does a lawyer need a lawyer anyways??

  47. bleedsoe9mm says: Jul 21, 2011 3:13 PM

    I love media on media crime , its what twitter was made for

  48. endzonezombie says: Jul 21, 2011 3:14 PM

    This is a 10 year agreement that I assume has no opt-out clause. A lot can change in 10 years, so it isn’t unusual for NFLPA lawyers to position their clients NOW for things that cannot be changed later. Whether or not the fans agree with this strategy is irrelevant to the NFLPA. Everything is negotiable for a price, and apparently the owners know the price the NFLPA is willing to accept for trading away it’s antitrust and TV settlement rights. The owners will sign a deal that pays the NFLPA little or nothing to settle those claims, and the NFLPA wants something in return. It’s simple negotiating strategy.

  49. tomnickle says: Jul 21, 2011 3:16 PM

    If I’m Roger Goodell I hold a news conference at 5pm Eastern Time stating that for every two hours the players go uncertified as a union, 1% of league revenues allocated to the players comes off of the table as part of the negotiations. Therefore, if they re-certify at 11pm this evening, their revenue share percentage is down to 45% instead of the reported 48% right now.

    Playing nice has gotten the owners nowhere, time to play hardball, even if it means replacement players.

  50. silverhornet says: Jul 21, 2011 3:18 PM

    For the players not willing to reconstitute their union, the UFL wants you!

  51. xinellum says: Jul 21, 2011 3:21 PM

    I have heard posters here complain about everyone from the owners to the players to the lawyers to the waterboys. Fact is, that neither the NFL nor the NFLPA is concerned that they will lose fans or they would settle. Everyone here posting will be the first to the ticket booth to buy their tickets, will be on the NFL store buying their favorite jersey, will be paying to get autographs during preseason, etc… If you not willing to break out of the herd and not follow along blindly behind the remaining sheep, then be quiet. If your willing to burn your season tickets, if your willing to boycott the NFL, if your willing to stand up against this stuff then do it. But everyone knows that every stadium will be sold out, every piece of NFL gear will be bought, you’ll pay $8 for beer and $10 for nachos, and live with it because you are sheep. Neither the NFL nor the NFLPA is to blame, we are to blame for getting kicked in the teeth by both of these parties and come back and say can you do it again. No thanks, I have $2800 in season tickets that are going to sit unused so that even though they have already got my money, I will have the satisfaction of looking at those seats on tv and seeing them empty and that is my statement to the NFL. Forget me, no, Forget you, and I used forget instead of the word I wanted to use.

  52. vargafamily1 says: Jul 21, 2011 3:26 PM

    The players are dragging their own names through the mud. I have lost respect for a lot of these guys. I feel bad for those players that truely want to do a deal now but can’t because their hands are tied by lawyers and asshat players.

  53. endzonezombie says: Jul 21, 2011 3:27 PM

    BTW, the deal can be done as a trade association without recertifying. It does create certain complications for the league regarding uniform team rules, and antitrust litigation with new players who are not part of the current trade association. However, a CBA can be signed with the trade association that allows for football in 2011.

  54. grpatriot says: Jul 21, 2011 3:27 PM

    Guess the only NFL action we’ll see this year, is in the court room!

  55. vetdana says: Jul 21, 2011 3:31 PM

    Some players have said for weeks now, that they do not want to re-certify as a union.This stance will kill this deal, end the season and force litigation ! Strong leadership on the players side has to act NOW to save this deal !This whole deal can blow up right now if common sense is not applied!

  56. endzonezombie says: Jul 21, 2011 3:46 PM

    “I have $2800 in season tickets that are going to sit unused so that even though they have already got my money, I will have the satisfaction of looking at those seats on tv and seeing them empty.”

    @zinellum: I doubt it. Few people apply their principles to entertainment. If it’s something they enjoy, creates comraderie with friends and family, and creates a sense of being part of history, all will be forgiven – even by you.

  57. glac1 says: Jul 21, 2011 3:47 PM

    attorneys plus union leadership equals disaster….

  58. ronin36 says: Jul 21, 2011 4:48 PM


    Wait a minute.. didn’t the NFL take issue with “de-certification as a bargaining tactic?”

    Wouldn’t re-constituting the union essentially be an admission of guilt on the union’s part?

    If they re-constitute, when (not if) there’s another scenario like this in the future, wouldn’t the NFL have a cry-wolf argument?

  59. descendency says: Jul 21, 2011 5:01 PM

    You can not have replacement players in a lockout. Period.

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