In a Thursday interview with ESPN 1000’s Waddle & Silvy Show, NFLPA President Kevin Mawae talked about various issues relating to the ongoing labor dispute. (Via SportsRadioInterviews.com.)
Early in the discussion, he carefully avoided declaring that he believes a lockout is coming, saying only that he’s “100 percent sure that the guys are prepared if it does take place.” Later, however, when talking about small-market teams not spending money during free agency without a salary cap or a salary floor, Mawae said that “it just points to the fact that they’re trying to save money because we truly believe they are gonna take us into a lockout situation.”
For a while, we thought that NFLPA Executive Director De Smith might have been pushing the idea of a lockout in order to soften the rank and file up to take the final, take-it-or-leave-it offer that the owners make. More recently, we’ve started to get a feeling that the people within the union who believe that Smith and outside counsel Jeffrey Kessler hope to force a lockout in order to force the best deal for the players via the ensuing application of political pressure could be right.
Either way, we do not believe there will be a lockout. Last month, sports lawyer David Cornwell set forth a theory that the league eventually will negotiate to impasse and then impose new rules on the union, forcing the players to choose between accepting those rules or striking. In response, a union source suggested that Cornwell’s interpretation of the law is incorrect, and the source encouraged me to do my own review of the applicable law.
I did. Though most of my now-mothballed legal career focused on employment law, labor law is a fundamentally different animal. So I contacted Bob Steptoe, Chariman of Steptoe & Johnson, a 97-year-old firm founded by his grandfather, and which now has 180 lawyers (one of whom more than a decade ago was a certain Internet hack with whom you might be familiar).
Bob has extensive experience in labor law, and here’s what he had to say.
Once an impasse is reached through good-faith negotiation between the parties, the employer may impose unilaterally the last, best offer that was made. In other words, the NFL will be able to say to the players, “We can’t reach an agreement, so our last offer will be the new rules. If you don’t like it, go on strike.”
Such an approach will most likely spark various forms of litigation. For example, the union could challenge before the National Labor Relations Board the existence of an impasse, or whether the NFL bargained in good faith. (It’s one of the reasons why the league constantly talks about wanting to get a deal done. When push comes to shove, the league must be able to prove that all bargaining occurred in good faith.) Also, the union will have the option of decertifying and filing an antitrust class action against the league, just as the union did after the failed strike of 1987.
But as the various claims snake through the legal pipeline, there will be football -- unless and until the players launch a strike. In the interim, the owners will have the benefit of a system of rules aimed at generating sufficient profits. And perhaps at some point a new CBA will be negotiated.
Still, there will be football. There will be no lockout.
Unless, of course, De Smith sells the players -- and the media, the fans, and Congress -- on the argument that the unilaterally-imposed rules are tantamount to a lockout, forcing the players to instead walk out.