Union still believes lockout is coming, we believe it isn’t

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.

26 responses to “Union still believes lockout is coming, we believe it isn’t

  1. I dont understand, what does this have to do with Mcnabb, time for a new 5 article Florio.

  2. They sure act militant and upity. It is as if they want to get locked out and play the victim card.
    Nobody likes whiners and fake victims.
    The Union is setting itself up to fail.

  3. we…we….we….we….we..what is it florio, you big time now? speaking in the third person shows yo as a pompous ass

  4. wtf is the point of this lockout?? i doubt tht players would want to be unemployed for 2011. it doesnt even make sense tht the nflpa is threatening a lockout due to the fact tht even players are against it

  5. My leanings are with the player’s association, I’m angry at the owners, and I want the players to get a fair deal. But at the end of the day, these are stressful times and football is my release. Like everyone else, I have my own financial concerns and they’re not in 7, 8, or 9 figures. I just want to be able to watch uninterrupted games without hearing all this incessant squabbling.
    If I feel that way–and I’m already union-friendly and sympathetic to the players–De Smith is going to have a hard time winning fans to the idea that the league’s actions were tantamount to a lockout even though there wasn’t a lockout.

  6. Florio, you probably should have mentioned that De Smith was also a lawyer at Patton Boggs…

  7. We’ll just hope you’re right. And I don’t care what union any posters belong too, it’s different. They are playing with monopoly money. More money than any human being should be able to spend in a lifetime. They use it to buy 41 cars and 6 houses on 5 continents. So don’t get all high and mighty on unions and fair treatment. I think 7 figures and beyond to play a sport and still get a per diem is fair treatment enough.

  8. Every time the union mentions the lockout, they slash one of their tires on the bus. The NFL makes it clear that it’s winning by not mentioning the lock out, and if I have to come back here a year from now without football, I’ll probably blame the union for it.

  9. i saw on fox tv bob krafty of new england is leading the way to keep the boys out.he said he doesn’t make enough?when the replacements come in im goinna do yard work!

  10. I hope there is a lockout, I am all for getting scabs to play.. I would rather watch a decent game with scabs, then a field full of overly spoiled men, overly paid men playing a kids game.. I am sure there are a lot of people that would play hard for half of what they are making… This is just giving the Owners more leverage.. Smith is effing up…

  11. so can you please explain what would happen if the nflpa argues collusion… the nfl wants to act as a single entity… but in reality they are 32 different corporations fighting for a title…. so if most teams operate on a nonexistent salary floor or salary cap. how is that not collusion? i realize they can say “hey we didnt get together and agree on the” and then they wouldnt be making a verbal agreement. but most teams are following the current salary cap format. and competition-wise that is not the sound decision. in an open free agent market with no salary cap teams should be duking it out. but teams are sittin on their laurels generally following basic salary cap guidlines i dont see how that is not collusion… can you explain?

  12. @nobodybeatsdawiz
    “We” is still 1st person, not 3rd, you idiot.

  13. i dont care if the owners say were only gonna pay $100,000 per player tops.. if the players dont want it.. i fualt them. Im sure youd be able to find some guys to play football for $100,000… and they wont be worried about 2 a day practices or BS…
    The players are greedy for asking for over 60% of profits.
    Ask GM how unions can mess things up for everyone

  14. Another reasons why lawyers will be the death of the United States. They make the rules and laws so screwed up that your average person (or lawyer in Florio’s case) have trouble understanding things.

  15. FWIW, Nobodybeatsdawiz: We is first person plural, not third person.
    I don’t think the sides would go to arbitration and accept the findings.
    The Union attorneys have the spotlight. They are more valuable the more this escalates. Don’t expect a willing compromise until the players get scared. Remember, the average NFL career is about 4 years, the average NFL player doesn’t make millions per year.
    Finally, to complain about the small market teams not spending in free agency is ridiculous when they finally have the right to do what they think is right for the financial security of those teams. Why not let the need to win drive the market? I am not saying do away with the cap, but what is wrong with capping the amounts a player can earn as well, assuring others will earn more? What benefits the majority will win. This would cause a rift in the union. If it is the last best offer, it could be the splinter the owners need to win the battle.

  16. How could anyone side with the owners??
    They’ve just secured a HUGE telephone video deal – of which the players won’t get cut.
    They’ve also squeezed the TV networks into continued payments even if there’s no football. They’re building huge new palaces – of which the players get none of the luxury box revenue.
    The owners are beyond filthy rich, yet they want givebacks.
    I hope the players strike and take the owners out at the knees.

  17. Take the owners out at the knees?…LMMFAO REALLY? Stop yourself Floyd your starting to make my sides hurt!
    As a previous poster alluded to a players career is generally 4 years or less, and while they all don’t make millions the league minimum is alot more than most people make, and you’re going to use up one of your 4 years on strike? Good thinking there….not to mention it cuts your chances of having that “big” stat year that converts into that big contract year.
    To think guys walking away from very high paying jobs because they want more is going to get sympathy from a public that is largely unemployed or at least underemployed is just insane. Sack up and play.
    C’mon guys…walk into your bosses office Monday and demand %60 of the businesses profits as your pay….there will be a new burger flipper in your shoes before you can blink.

  18. Greedy players, getting hosed by corrupt NFLPA bosses, may to find themselves watching replacement players on TV next Fall. Hopefully, there will be a few star players who see through the b.s. espoused by Smith & cronies to cross the line. Some combination of Manning, Brady, Ray Lewis, Randy Moss etc should be adequate — why should these guys give up multimillions in the twilights of their careers to line Smith’s pockets?
    With 2011 TV contract revenue assured, the owners hold all the cards. Hopefully, the Lockout of 2011 will break the back of the NFLPA.

  19. The players are doomed
    D Smith is a fool
    The owners are rich good for them last time I checked that was still ok in this free country of ours.
    Owners right the checks players cash them the owners do not own the teams to make a bunch of jocks rich they own the teams to make money for them.
    Did a single Cowboy or Giant or jet sign the note for the new stadiums that were built no the owners did. What does a player do to make the game better or to make the team more money?
    No NY Giant or even a jet for that matter has made more money for there team the Mara Tish and johnsons take the risks 1.5 billion of them to build the new Meadowlands and that note is due every month with or with out the primadonna players.
    This is just another glaring example of what is wrong in America today. If not for people like the Mara’s there would be no NFL
    Unions used to be important now they are just in the way of progress the union officials get richer while they stir up the pot and cause problems between workers and owners.
    All unions should be outlawed and people should stand up for themselves if you a hard worker you get paid if not bye bye

  20. @Bigbluefan …
    I’m not arguing the merits of the NFLPA position, but if you are a worker in a large corporate machine, you are less than nothing to the people in power. It doesn’t matter how hard you work, how much you produce, how loyal you are, or how diligently you protect the company’s interests. If the power brokers want to buy a new jet and think they can fund it by cutting your pension, they will. If they want to make their shareholders think profits are up when they’re not, they’ll simply reduce labor costs by outsourcing your job to a country that pays pennies on the dollar to what you earn and doesn’t pay benefits. That’s the reality.
    Have labor unions screwed up some things? Yes. Have some labor bosses become corrupt? Yes. Can each worker acting on his/her own behalf expect a fair shake from corporate ownership?
    Sure … about the time the Easter Bunny starts delivering solid gold eggs.

  21. The owners have much of the leverage and everyone knows it.
    The players will want a lot and chances are they won’t get much
    They will cave in the end as they should because they will be looked upon as the bad guys

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