NHL urges appeals court to side with NFL

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With the entire union-management approach to professional sports under assault after the NFLPA decertified and sued the league for antitrust violations when faced with a likely lockout, one of the other major sports leagues (some would dispute the term “major”) has filed a brief in support of the owners’ position that Judge Susan Nelson’s order lifting the lockout should be overturned.

The National Hockey League has filed an “amicus curiae” brief, Latin for “friend of the court.”  It’s a common device used when a party has no stake in a given situation, but when the party feels compelled to chime in due to the possibility that the party’s interests could be affected adversely by the eventual ruling.

And the NHL, the NBA, and Major League Baseball could all be affected adversely if the U.S. Court of Appeals for the Eighth Circuit endorses the legal strategy that the NFL players have unleashed.

Explains the NHL at the outset of its submission:  “The National Hockey League (‘NHL’) has a direct interest in ensuring that the determination of terms and conditions of employment for NHL players is the product of a bona fide labor process rather than the ‘lever’ of potential antitrust liability. This is especially true in the context of the stable and mature collective bargaining relationship that the NHL and the National Hockey League Players’ Association (‘NHLPA’) have had for nearly 45 years. Yet, under the district court’s decision and rationale, a group of employees can, at any time and for any reason, insinuate the antitrust laws into the dynamics pursuant to which new terms and conditions of employment are negotiated and determined. All a union has to do is have its members ‘disclaim’ union representation, simultaneously reconstitute itself as an employee ‘association,’ and then ask the court to immediately enjoin any joint labor activity of the employers (e.g., including the implementation of a lawful lockout) by filing a treble damages antitrust complaint and a motion for preliminary injunction. The NHL respectfully submits that this cannot be the state of the law.”

There’s a lot more that follows, but it’s all fairly predictable.  The NHL is focusing on principles of federal law that, from the naturally skewed perspective of a sports league, prevent a union when faced with a lockout from shutting down the union and filing an antitrust lawsuit.

Though NFLPA* spokesman George Atallah pointed out via Twitter the irony of the NHL’s involvement in this matter, given that NFL labor counsel Bob Batterman engineered a lockout that once wiped out a full season of pro hockey, Batterman’s firm didn’t submit the brief.  Instead, the brief was drafted by Shepard Goldfein, James A. Keyte, and Elliot A. Silver of Skadden Aarps Slate Meagher & Floam’s New York office.  That said, it’s entirely possible that Batterman encouraged the NHL to speak up in support of the NFL, before the NHL end facing a similar problem.  The other pro sports leagues probably should have done the same thing.

And when the players respond to the league’s brief in support of its appeal, the other professional sports unions should submit briefs echoing the arguments in support of the ability to shut down a union and assert antitrust liability.

As to the brief submitted Monday by the NFL, I’ll be taking a closer look at it tomorrow and sharing my thoughts regarding the league’s initial arguments aimed at keeping the lockout in place indefinitely.

For the five of you who care about such details.

66 responses to “NHL urges appeals court to side with NFL

  1. I appreciate this write-up, and always enjoy hearing you on KCSP 610 AM in Kansas City when you join Nick Wright’s show for NFL commentary, but your parenthetical in the lede is unnecessary, and the antithesis of comical.

  2. The NHL has been increasing in popularity every season since the lockout, and really not that far behind the NBA at this point, so you can probably drop the quotes.

    Also, at least that NHL is looking ahead trying to prevent another lockout, unlike the NFL which sat on their hands until they had their weak mediation sessions 2 weeks prior to the deadline.

  3. Might want to check some attendance comparisons with between the NHL and NBA. And with the ratings way up for the NHL the league is quite a bit more “major” than you’re giving them credit for. That said, looks like Gary Bettman, the most hated Commissioner in all of pro sports, has found a counterpart in Roger Goodell. Bettman is happy he’s no longer the only Commish getting booed like crazy anytime he gets in front of fans.

  4. So the league that was growing like gangbusters and suffered through a work stoppage that it has yet to recover from is telling the courts to side with the competition that is now eating its lunch.

    Brilliant. I can not decide if this makes me like the NHL more or less. I mean, it is pretty ballsy to to argue to the court to “please please please allow them to make the same mistake we did so that we can get some more fans back and return to networks that people actually have access to”.

  5. look, i’m a complete troll, and maybe this sacrifices my guise – but, hey, NHL, stay of of it. you’re only making things worse. worry about your stanley cup playoffs and go away. i mean…


  6. As to the brief submitted Monday by the NFL, I’ll be taking a closer look at it tomorrow and sharing my (the players) thoughts regarding the league’s initial arguments aimed at keeping the lockout in place indefinitely.


    The plot thickens. Lets bring in all pro sports, owners and players.


    FACT: D. Smith caused this mess when he walked out of CBA negotiations, decertified the union, had certain players file suit. And then he didn’t attend at least one of the court ordered mediation sessions.

  7. Very minor nitpick, but the MLB doesn’t have an especially large stake in the outcome of this case since MLB has antitrust immunity.

  8. Why are people petitioning the courts?
    Why are people going after Goodell?
    Why are people going after DeMoron Smith?

    The people they should be asking to end all this is Tom Brady, Peyton Manning, and Drew Brees. They’re the ones with their names on the lawsuit. They can end it all in an instant.

    As fans we should be BOMBARDING them to stop the madness. Be remembered as the Superbowl winning QBs who ruined the NFL and had the power to stop it, or be remembered as the SuperBowl winning QBs who stepped up and saved the league?

    Brees is on twitter. Let’s go #Egypt on his ass and get this fixed.

  9. No real surprise there considering the NHL just screwed its players, giving them the worst labor deal in all of pro sports after a year-long lockout. They know that a few more inevitable rulings against the NFL will completely destroy the leverage the NHL owners currently hold against the players.

  10. NHL I love you and would agree whole heartily if you said this about the NBA. However the NFL is a different animal.

  11. So PFT is a site for pure football fans only?

    I guess I’m one of those five because I love the NHL and hockey just as much as I do football…

    Questioning whether the NHL is a ‘major’ sport is ridiculous.

  12. Mike, who are these people arguing if the NHL is a major sports league? Are they the same douches writing about their sons little league team?

  13. HKY is more of a sport then baseball, basketball, and golf!!

    I am trying to say something positive about basketball because at least you sweat playing it but I just can’t think of anything!

  14. of course they do. they were in the same situation years ago. JUST OPEN THE BOOKS! OPEN YOUR BOOKS YOU FAT OLD GREEDY SOBS. BDE HONEST.

  15. I agree all major league sports and professional athletes should support the NFL. The poison pill tactic the union is using for leverage will damage all professional sports and players. Putting a bullet in the head of the “Golden Goose” is a catastrophic tactic that will damage all sports. The decertification of the union is a sham and the law should not be used to uphold this fraud.

  16. If I remember correctly, MLB has an anti trust exemption given to the league by an appreciative Congress. That doesn’t mean MLB is without labor strife, it just makes the playing field level, without the bull of treble damage law suits.

    The best resolution to this entire mess, the way I see it, is to dimiss all of these losser court cases, and open the new league season under the 2010 CBA. And, to make sure that there is no hold up to negotiations, make negotians are a part of court ordered review–until they get it done. The best restarting point is the last offer the NFL had on the table before the players decertified (really?) their union and ran to court.

    We need to get football back up, and running–SOON!

  17. This is just gonna get uglier. This can serve no good or useful purpose other than to protect the interests of the owners. Forget the fans, the people who really should matter, this is all about power, greed and control.

    The NFLPA is not without fault here, but in my personal opinion they were willing to split the pot in a more equitable fashion. The owners just basically told them to go pound sand and they want it all.

  18. So, in other words, both the NFL and NHL are asking the court to completely ignore federal law because they find it an inconvenient impediment to their efforts to bend the players to their will. The law is this case is rather simple. The only way to find in favor of the NFL is to find that, once joining a union, workers have no right to leave it. It’s rather comical to see some of the comments on this site that attempt to be anti-union and pro-owner at the same time, when the fact is that this case represents the owners trying to force the players to remain unionized. The owners need to be prepared to either run their businesses in a way that complies with federal law, or actually negotiate with the players (as opposed to simply making demands for a growing list of concessions) to create a deal that makes said laws a non-issue.

  19. Breaking:

    Fox News is now walking back its earlier claim that the NHL is governed by Sharia Law.

  20. If the NHL would urge hockey-style fights, I would support the NFL too!

  21. The NHL (some would dispute the term “major”) .

    I do not dispute the term major. Second in terms of sporting appeal to NFL only IMO.

  22. Seriously? I gave up on the NHL after the strike. Last thing the courts should give credibility to is a league that can’t sustain it’s own fan base.

  23. I used to care. Now I don’t. I’ll renew my Tar Heel season tickets and enjoy some college football and tailgating on Saturday. It’s just as good since the players get paid on that level too.

  24. The NFLPA will ruin sports as we know it in this country. It will only be a matter of time before college players hold out and refuse to play until they are paid 60% of all the money made by universities.

  25. It is obvious that none of you really pay attention to other sports. Most NHL teams are selling more tickets than ever while the other so called “major” sports are losing fans.

    I have been a hockey fan all of my life and I was extremely pissed when the lockout happened. But the rule changes and the fresh approach have changed the game for the best.

    If this labor dispute is not settled correctly instead of a band-aide approach, football has a chance to be ruined just like the NBA.

  26. This labor struggle between the NFL and the NFLPA will only be settled through collective bargaining, not lawsuits.

    Essentially, the NFLPA is arguing that there should not be any restrictions on player movement or salaries and that professional football should be treated as any other business.

    The fact of the matter is that the NFL is a sport league. Just as players on a playground select a couple of players to “pick sides” so that the games can be competitive, the NFL has to have a draft to ensure competition. Just as the NCAA only allows teams a certain number of players under scholarship, the NFL instituted a salary cap that not only ensured that teams could be competitive, but also that players would not be harmed by tight wad owners who would field teams of low-paid players.

    Judge Nelson’s ruling took away the negotiating balance that will be necessary to end this labor impasse. If the players think they will win in the court, they have no reason to collective bargain. The Eighth Circuit Court of Appeals did the right thing in lifting the injunction. In doing so, the league is able to continue to lock out the players, which was initiated by the players walking away from collective bargaining, decertifying the union, and then filing antitrust lawsuits. There is now a balance and neither side feels certain that it will win in the courts. Unfortunately, the various suits and appeals now pending make it nearly impossible for both sides to get back to where they belong — the bargaining table.

    The NFLPA’s decertification was sham designed to give the players more leverage in collective bargaining.

    Goodbye 2011 NFL season. As this legal mess winds through appeals and the various lawsuits now filed, the season will be gone.

  27. Good! Shut down all sports leagues and take care of the real issues in America…

    Honest hard working Americans are the ones being screwed here.

  28. The best thing that could happen in this mess, if for the court to throw the whole thing out of the court system.

    Labor disputes don’t belong in the courts. Any court-state or federal.

  29. brothaman1 says:
    May 10, 2011 2:15 AM
    of course they do. they were in the same situation years ago. JUST OPEN THE BOOKS! OPEN YOUR BOOKS YOU FAT OLD GREEDY SOBS. BDE HONEST

    Why are the players so afraid to have an independent 3rd party verify the claims of the owners. Oh, I know. The players want it all. They want to take the book and then remove the expenses they don’t think should be included in a P & L statement a la the NBA players when their owners opened the books.

  30. chedberg says:
    May 10, 2011 6:52 AM
    Isn’t the NHL just getting back on their feet … so much for that.


    Right. Going out of business would have been a much better option!!!!!!!!!!!!!!


    … and nothing else …

    Court ordered mediation doesn’t seem to be very well enforced if they’re all away from the bargaining table for weeks at a time.

  32. Whereas I am not a huge hockey fan, this is a large yet predictable development. Most people seem to view this from an anti-owner or anti-player viewpoint which is shortsighted on both sides.

    I’m comfortable that the sides being taken are probably driven by political philosophy and the issues sited just serve to justify the predetermined philosophy.

    This development should serve as the wake up call that this could lead to monumental changes in the NFL and later in the other professional sports. This fight could just be the first. Those changes could be very bad for us as fans. For people that care about other sports along with the NFL, that could make for a miserable couple years.

  33. ravenution says: May 10, 2011 12:16 AM

    Who cares what the National Honkey League thinks!?!
    Epic fail, again.


  34. What’s the sense of having a website like this if you’re going to pick-and-choose whose opinions you’re going to allow?

  35. The NHL??? Who’s next the LPGA? Talk about random, isnt their TV package on Bravo?

  36. Go ahead and listen to the NHL, the league that lost 100% of it’s fan base and only 30% returned.

    So, how many of you are on the owners side, now?

  37. goaway and treehugger(or what ever that name is)….NHL has 60 minutes of almost non-stop action while the NFL has about 15 minutes of action during a 3 hour game. The rest of the time is just getting up from the last play and getting ready for the next. There was, I think, 15 straight nights of OT games this NHL post season.

    The popularity is rising, attendance is rising, TV viewership is rising(made more impressive by the lack of a big three contract), every thing points to increasing popularity and fan base. But don’t let facts cloud your version of reality.

  38. chapnastier says: May 10, 2011 7:04 AM

    The NFLPA will ruin sports as we know it in this country. It will only be a matter of time before college players hold out and refuse to play until they are paid 60% of all the money made by universities.
    Please rationalize your blind allegiance to the owners in this case with your previous anti-union, if you don’t agree with me you’re all commies remarks. The NFL is not a free market. They are actively fighting the decertification of a union (that’s workers walking away from a union…you know, the organizations you hate) so that they can continue to be immune from federal regulations. If you’re really as stridently pro-capitalism and anti-union as many of your previous posts claim, you should be siding with the players. If you take their case to the extreme, you end up with the absolute free market you seem to think would work perfectly in every other endeavor.

  39. The NHL should be scared sh!tless, as the guy that helped ruin baseball, Donald Fehr, is now in control of the NHLPA.

    Next labor negotiation will make the last strike look like a group retreat.

    Oh, and I’m with @vahawker on a lot of what he said. I loved football all my life and enjoy just about any other sport, but playoff hockey offers hands down the most excitement per second. Less pointless goonery, more skill.

  40. The rulings of Nelson are precedent setting which has a much greater impact than just the NFL, which is why the NHL and other major sports are potentially impacted.

    Allowing the sham decertification and the lifting of the lockout are precedent setting.

    The NBA union is already talking about taking a similar approach with the discussions focused on filing in Minn due to the pro-labor rulings of the court.

    This is not good for the long-term future of professional sports!

    I do not want a future in which all discussions can be challenged by litigation with the courts rulings based on political alliances……

    I realize that most people who are pro-player are focused on restoring football so that Kolb or S. Smith can be traded……or free-agents can be signed….or UDFA can be signed…..or teams with new coaching staffs can start holding off-season workouts……

    However that does not address getting a CBA done.

    It is not uncommon that most players are only focused on maximizing their money and not onthe future of the game or the retired players. That is were the Union Leadership should play the role of balancing the present with the future and the past, however the current Union Leadership is focused on making a name for themselves (De Smith / Kessler) and vying for their future roles within the NFLPA (Mawae).

  41. brothaman1 says:
    May 10, 2011 2:15 AM
    of course they do. they were in the same situation years ago. JUST OPEN THE BOOKS! OPEN YOUR BOOKS YOU FAT OLD GREEDY SOBS. BDE HONEST

    The owners have no legal obligation to open their books you pawn. Good for the owners sticking to their guns.

  42. @ stanklepoot

    I don’t think you really understand my position on this which is odd since I have made it quite clear for months now. Obviously you have been told that just because someone is “against” the players they are anti-union, probably racist and a tea partier. Get real dude. I have explained over and over again why I am on the owners side with this labor issue. I have used the NBA and the MLB as examples. The players/employees are trying to become larger than the game itself. They are EMPLOYEES. Easily replaced, if not by another player than by time. This whole legal action could have been avoided by simply remaining a union and continuing to negotiate. They have wasted so much time with this garbage.

    I understand that you probably didn’t read this, since it is painfully obvious you don’t read anything I have post. Which is OK, but if you are going to try to call me out on something put some effort into it rather than using the typical rant you just posted.

  43. Sorry, raiderman, but you’re wrong on multiple points. Decertification didn’t disrupt a balanced leverage position. Prior to decertification, the leverage was entirely in the hands of the owners. The owners strategy is quite transparent really. They intend to stretch things out and lock out the players, thereby denying them any football related income, until enough players are suffering financial hardship. At that point, they would have pressured the union leaders to accept pretty much any of the demands the owners made. That’s why the players walked away from the table. They didn’t believe the owners were negotiating in good faith. They avoided talking with the players, and even skipped out on a meeting with them so that the owners could get together for a big dinner. It was only when the deadline was on them that they offered the players a new deal that even they admit was more of an outline of a possible deal. The players saw this as an attempt to do nothing more than stretch things out and bring the players closer to missing paychecks. Were they right? Maybe, and maybe not, but they certainly had just cause to think that. The players decertified and filed their complaint in federal court because it was the only way for them to fight the lockout they knew was coming, and the lockout hit before the suit was filed so you can’t say that wasn’t the owners’ intention. If they can get the lockout lifted, then the players won’t be trying to negotiate a fair deal while a large number of them are going broke. That actually puts the negotiations back on a level playing field. As for the anti-trust suit itself (which, if both sides come together and work out a deal, will never actually reach a ruling), there are ways for the league to function that won’t put them at any additional risk.
    Now, as for the whole “decertificaiton is a sham” argument, no one has yet to actually bring any evidence to that discussion. To decertify, the NFLPA had to file some paperwork, including with the IRS. They did that. They have to refrain from acting as a fully functioning union. They’ve done that. The owners are the ones saying they want to bargain collectively with the players, not the other way around. The owners wanting the players to be unionized doesn’t make it so. The only argument I’ve seen that decertification is a sham is that “they only did it to gain leverage”. To that I say, no kidding. Rational people make decisions every day with their own best interest in mind. I would certainly hope that the decision to either form or dissolve a union would be made with the same rational thought. If forming a union isn’t a sham because the workers are doing it to improve their bargaining position, how then is it a sham for them to do the opposite for the same reason? So, you can word it any way you want, but anyone claiming that decertification is a sham is arguing that workers have no right to walk away from a union and no right to dissolve a union that controls the labor in an industry they want to enter. If that’s the precedent you want to see made, then by all means support the owners argument.

  44. The decertification was a sham intended to turn from collective bargaining into litigation, the NFLPA choose to litigate over collectively bargaining believing it gave the NFLPA / NFLPA* the best leverage.

    The argument being offered that the owners did not bargain in good faith can actually be levied at the NFLPA who have admitted to not reviewing the last offer from the owners until after decertifying and filing their legal motions. Further the NFLPA / NFLPA* admitted that the 10-year of books was a negotiation ploy.

    So let’s not be so pro-player or pro-owner to ignore history and the facts.

    The owners as their contractual right opted out of the CBA because they determined that the CBA was not financially viable.

    The owners and players waited until the 11th hour to begin serious discussions, to which it can be argued against both parties how serious the negotiations / mediation was taken by the both sides.

    The NFLPA choose to decertify and the route of litigation.

    The Minn court rulings have to-date been very favorable to the NFLPA / NFLPA*.

    The 8th circuits one ruling thus far has been pro-owner.

    Who knows what the next step in this litigation nightmare will be.

    This much we know, both sides have stated they want to negotiate with each other and not with lawyers. The owners and commissioner have been constant with the message. Players such as Vrabel and Foxworth from the Union Board have stated as much. The reality collective bargaining cannot take place with the decertification so all discussions have to be through legal council, to which neither side has chosen to pursue until clarity with respects to the litigation proceedings are understood; by clarity I mean leverage.

    The best for all would be the 8th Circuit to stay the Nelson rulings and forth mediation through the Federal Mediator otherwise the court will issue ruling by which the NFL and NFLPA* will have to operate under until which time an agreement by both parties has been achieved. The players do not want this as they do not have the leverage with the 8th Circuit. Further the owners do not want this as they know very well the issues with having a CBA overseen by the court (hello, Judge Doty).

    Balance the playing and force both parties to mediate / negotiate, that will get a deal done and get football back on the fields and out of courtrooms!

  45. Union (NFLPA) vs. Corporate America (NFL) and the underlining and well intentionally forgotten about by the coporate run sports media, 9 billion dollars.


    Funny how site like this, are on the side of the NFL but pretend to be on the side of the fans…YEAH RIGHT..

  46. @friendlylittletrees Stupid is as stupid does. Believe it or not, silence will make you MORE intelligent. Now, bring me my pizza.

  47. NHL, you have no credibility!!!

    Especially when your season got cancelled and there were talks of the Wall Street Journal buying your league for $5 billion!!!

  48. @stanklepoot,
    Your analysis is majorly flawed because you seem to equate the NFLPA with a typical labor union. This labor strife is far from typical and is not easily shoehorned into a common scenario of labor vs. management.

    The owners did plan on locking the players out but that was only IF the players failed to negotiate in good faith. The players wanted to avoid a new deal and therefor did not negotiate. They decertified to gain a legal advantage from an abnormal football market unprotected from anti-trust exemptions. The players walked out, decertified and THEN got locked out.

    As for the “sham” issue, the NFLPA had very little leverage in the current talks, mainly because they received the better end of the last deal. They needed to manufacture some leverage. Anti-trust suits were the easiest solution so they decertified. The issue is not whether unions are allowed to decertify; it is about the rationale behind the decert. Unions are allowed to decertify (via established procedures) if the members believe that the union is no longer serving their best interests through collective bargaining. That isn’t the case here because the union’s strategy involved decertification. The players’ side has argued that the decert is not a sham, yet some players have said that they are not really attacking the draft and other things explicitly outlined in the suit. Either the decertification is a sham to gain leverage or the players are actually attacking the very things that have maintained a certain level of parity and made this sport exciting and great. It is one or the other and it can’t be neither or both.

    The bottom line is the league needs the union because of the CBA induced anti-trust exemptions necessary to maintain leaguewide fairness, competitive balance, revenue sharing etc. and the players need the league to be successful so that their members can maintain the lifestyle/financila success provided by the league. Each side has valid point and each side has acted stupidly. They need an agreement that both sides can be comfortable with but they have built walls to prevent any talks that could lead to an agreement.

  49. Here’s the deal… The NHL is not as popular as the NFL. However, what makes the NFL the NFL, and the NHL the NHL are very similar, Big hits, and amazing scoring plays.The NHL has every right to speak up on this, they are JUST starting to regain usual attendance and viewership ratings 6 years after the lockout. So if the NFL were to lose a season, it would spike intrest in another sport during that timespan, which is hockey. More games to watch, cheaper ticket prices, and no sitting out in the cold in meaningless games sounds good to me. NFL, please listen, even though the NHL pulled one over on their players, they are speaking from experience. Also, just a side note… A stanley cup appearance is more beneficial to a city than a superbowl berth, sorry NFL but they got you on that one.

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