Clement’s comments about last week’s negotiations could cause problems


On Friday, after the hearing in St. Louis on the question of whether the lockout will be lifted, we pointed out the importance of the players and owners ignoring things said by the lawyers.

It could be easier said than done.

NFL lawyer Paul Clement, who angered players during the oral argument by pointing out comments that some are enjoying the lockout as proof that they aren’t suffering irreparable harm, said something after the hearing that could cause the NFLPA* turtle to put its head back in the shell.

“I think there’s no question that to the extent with what’s going on is continuing negotiations,” Clement told reporters.  “I think what that underscores is that the union has not disappeared forever.”

So if the NFL’s top appellate lawyer will use against the NFLPA* the fact that negotiations are occurring, why should the NFLPA* negotiate?  An union-turned-trade-association spokesman raised that very point with Peter King of  “How does that build any kind of trust?  Their lawyers risks crippling the process with remarks like that.”

He’s right.  And Clement’s comment constitutes further confirmation that, in this specific case, the lawyers need to stay benched.  All of them.  They’ve already done enough to throw this process off the rails; if they truly care about their clients’ best interests, they’ll gladly step aside until the time comes to reduce the labor deal to writing.  Even if they won’t, their clients need to politely tell them to get the hell out, and to stay the hell out.

If, in the end, the principals can effectively maintain their independence from the lawyers during negotiations, a deal could be done in principle by Independence Day.  Then the lawyers can return to hammer out the details — and hopefully not screw everything up.

26 responses to “Clement’s comments about last week’s negotiations could cause problems

  1. “if they truly care about their clients’ best interests, they’ll gladly step aside until the time comes to reduce the labor deal to writing.”

    Question: When does a lawyer ever care about his clients best interest? Answer: When it makes them more money.

  2. When emotionally immature millionaires are led by an emotionally immature lawyer with an agenda, of course they will be affected by that statement. It would take some maturity to ignore it and continue to negotiate.

  3. I enjoy this site, and don’t want to step on lawyer toes. That said, is it wrong of me to immediately question if the remark from Clement was calculated to break down talks?

    As long as there is no deal, the lawyers will be the ones making out like bandits. When it’s over, not so much…

    Perhaps I give guys like Clement too much credit, but he seems too smart to have bumbled that statement.

  4. De Smith, Drew Brees and Kessler have done far more damage with their words and actions than Clement has. Just get to the negotiations and get a deal done instead of being the biggest crybabies in the world.

  5. Sometimes you wonder how bright, intelligent people can be so stupid. Everyone know that the union decertification is a scam but to bring it up in that context when they seem to be toning down the trash talk and finally talking is just stupid!

  6. Oh no! Stating the obvious makes the players angry!! Now they’ll run home and tell their mommy (homey!) and refuse to share their ball or play with the others in the neighborhood!

  7. Just another reminded of what’s wrong…..things are run by lawyers.

    Have a few player reps. meet with the owners and get a “gentleman’s agreement. THEN, give it to the lawyers to finalize.

    Do they know just how much harm they are doing to the image of both the NFL and the players…….or do they not care knowing that we will still come back and watch football?

  8. This isn’t a surprise. The lawyers want to extend this out indefinitely. The more we all wait, the more they litigate and get paid.

    It’s not hard to see the conflict of interest. It’s the lawyer’s wallets.

  9. If the players don’t like the language the lawyers are using, then they shouldn’t have rushed to the courthouse to decertifiy and take the NFL to court! Lawyers screw up the whole process…..sit in a room and don’t come out until a deal is done!

  10. Enough with the lawyers and enough with excuses coming from the player’s camp…..shut up and negotiate in good faith. The only party that at this point has shown a willingness to negotiate is the owners with multiple offers and not a single counter proposal.

  11. It is certanly in the interest of both sides to keep quiet outside of the courtroom.

    But inside the courtroom, they both need to make compelling arguments to win the case. And no one should get their feelings hurt.

    I would have a terrible time trying to argue that the players are suffering irreparible harm…meaning that which can NOT be repaired with money. The players really got upset over this argument? Irreparable harm? Really? C’mon man.

  12. “The lawyers need to stay benched. All of them. ”

    I actually agree for once, but I’m confused…does this mean that the lawyer advocating for the players on this site will also refrain from getting involved? Report on the facts, and leave your pro-player posturing out of it.

    I know, three minutes until I’m deleted.

  13. It is not the first time a lawyer said something stupid. The old saying is ” you do not know if someone is dumb until they open their mouth and remove all doubt”.

  14. The reason why a settlement should come AFTER the Eighth Circuit rules is because of the need for legal precedent in this area. In the event it’s contemplated under the next CBA that the District of Minnesota retains judicial oversight, that court will have to recognize that it does not have jurisdiction to enjoin a future lockout by the League, assuming, of course, the Eighth Circuit rules that way. What additional leverage the owners are expected to get from this ruling will be limited, and will therefore not make a new CBA less likely to be successfully negotiated.

  15. This lawyer is just doing his job. As any lawyer going before an appeal panel goes, you don’t tailor your arguments for one side or the other, but for the middle. He isn’t trying to convince the conservatives that are going to rule for the owners no matter what the law says, or the liberals that are going to rule for the players regardless of the law, but for the moderates more inclined to follow the law because of not having an axe to grind or dog in the hunt. The way to respond is not to walk away from the negotiating table (more on that later) but to make the case that a trade association – and other organized employee groups that fall short of the technical, legal definition of “union” – can and do engage in collective bargaining for its members, with the best example being the early 1990s, when the owners negotiated a CBA with a decertified NFLPA, which recertified only after the CBA was approved.

    The federal judges who ordered the players and owners to negotiation and mediation sessions were fully aware of this. Claiming otherwise would be claiming that Doty, Nelson etc. are really on the side of the owners, and colluded with them to trick the players into taking part in negotiations that would undermine their decertification claim. That being said, the players should not rush back to renegotiation. The owners decided that they did not want to negotiate until the CBA had (for all intents and purposes) expired in order to maximize leverage over the players. The players should respond by not making a counter-offer or otherwise negotiating until the season is about to start in order to maximize their own money. If the owners were willing to use financial pressure to the players as a negotiating tactic in order to force a quick deal that favors their terms, the players should be willing to do the same. The owners should have started negotiating in 2009 when they decided to opt out of the CBA. Since they didn’t, the players should start negotiating in August, 2011. If the season doesn’t start until October or has to be truncated 3 or 4 games, so be it, so long as it keeps the owners from pulling this stunt again.

    And towards that end, the NFLPA, or NFLTA or NFLPA* should make language in the new CBA preventing the owners from ever doing this again. It is rather simple: if the owners decide to let a CBA expire again, that expired CBA has to be the baseline for the negotiations on a new one. If their FIRST PROPOSAL does not meet the baseline, then the NFLPA is granted their decertification immediately. If they claim that they can’t use the prior CBA as a baseline, they are going to A) have to open up the books and prove it and B) provide a GOOD REASON why they allowed the CBA to expire before EVEN TRYING to negotiate a new one. And if the players do not respond – or if the players are the ones to allow the CBA to expire – then they forfeit their right to challenge being locked out or to strike.

    And this provision should be rolled over into all future CBAs. That’s the only way to keep this nonsense from happening in the future.

  16. It is unrealistic to hash out all the legal issues at play with “the lawyers on the bench”.

    This is what they are getting paid to do. Try to win.

    The players can not reform the union and negotiate instead of litigate until they win or lose in court.

    That does not mean the owners could not lift the lockout and play football while the legal issues are sorted out.

    Last year there was no cap, no floor. Some teams spent a lot, others went well below the 2009 floor. Football was still football.

  17. Rhode Island Patriots Fan:

    The idea that the owners are going to get all this leverage from the eighth circuit ruling is myth. You keep forgetting that A) in order for the lockout to stand the NFLPA must be in existence and B) no court can keep the NFLPA in existence forever, because it is illegal to force employees into a union if they don’t want to be one, and particularly if their employers want them into a union so that can continue to receive an anti-trust exemption that the employees no longer want them to have.

    Even if the court keeps the lockout, they will likely set a date when the players can legally decertify. If the court decides to be so in the pocket of the owners that they don’t set a decertification date, the very liberal NLRB will give one. The NLRB’s date will be September 11th (6 months after the players’ originally filed for decertification) at the latest, and IMMEDIATELY (based on the logic that their original decertification was valid) on the former. Now the owners can appeal the NLRB decision in court, but the court would have to set their own date, and justify it.

    At that point, all Smith, Kessler etc. would have to do is tell their charges to sit tight until that date. And when that date comes, the players can again sue to have the lockout broken, and no court will have any justification for allowing it to continue. And that would be a “worst case scenario” for the owners, because they would be required to institute work rules that allow the league to operate “as normal” (meaning the players would get their millions and games would be played) BUT the anti-trust lawsuits would still be allowed to proceed because there would be no CBA and no NFLPA.

    Instead of getting all the momentum, the owners are merely trying to buy themselves some time, and hope for a player revolt against Smith, Kessler, Olson etc. until then. The problem is that since the only players missing checks right now are the wealthiest who get offseason bonuses, and the vast majority of the players only get their 16 game checks, there won’t be any reason for the players to dump Smith until September 11, or at least about what would be the middle of training camp well into August when it really begins to look like paychecks will be missed.

    And even then … it isn’t as simple as you guys make it out to be. The player reps would have to vote to retain Smith, and it would take at least 17 votes. If Smith wins (which he almost certainly would the first round) then the individual teams would have to vote out the pro-Smith reps and replace them with new ones, and hold another vote, and keep doing it until Smith loses. And then they would have to go out and find a new player rep to preside over this mess (good luck with that!) and actually negotiate a deal, which the players would still have to approve by voting on. Oh yeah, and they would have to either withdraw their petition to decertify, or they would have to file a petition to recertify. Seriously, it could take months.

    The Smith and Kessler know this. The players know this. The owners and their lawyers know this. The only ones who DON’T know this are the folks buying into the owner propaganda.

  18. Clemment didn’t lie; he stated a fact as seen by his client. Also, the players helped get this into court so they shouldn’t get upset when lawyers defend the owners in court (as they are required to do).

    If they don’t want lawyer speak involved in this process they should move this into a forum where the lawyers are not involved.

    Both sides need to realise where they have taken these proceedings, quit being so touchy, and negotiate a deal already.

  19. @tradeassociation…

    I think your post responding to me is wrong in several material respects. Just to cite one example, you state that, “… in order for the lockout to stand the NFLPA must be in existence… .” By “NFLPA”—absent the asterisk convention used by PFT to reference the trade association—I take it you mean the “union.” If so, have you read the Eighth Circuit’s ruling/opinion on the appeal? I doubt it, because in all likelihood it hasn’t even been written yet. The only written opinion to date by the Eighth Circuit deals with the stay pending the appeal. There, the majority stated on page 9, “The Act’s text and the Supreme Court’s interpretation of it raise serious questions about the district court’s conclusion that the Norris-LaGuardia Act does not prohibit or condition injunctions ‘absent the present existence of a union.’” That directly contradicts/rebuts your statement.

    As an aside, I do think it’s inappropriate to write, “If the court decides to be so in the pocket of the owners that they don’t set a decertification date… .” Rest assured, the Circuit Court judges, like the District Court judges, are in nobody’s “pocket.”

    I do think the pressure will go up exponentially on both parties to settle this labor dispute once the Eighth Circuit rules on the appeal. If the owners come away with a ruling that can even remotely be construed as a “win,” then I predict that even those in the sports media who are sympathetic to the players’ “cause” will say that the players should end it. Remember Bush v. Gore? Once the Supreme Court ruled against Gore, the country—and even the liberal media—said enough is enough.

  20. Posters sympatheitc to the owners cause often use apples-oranges comparisons to support their arguments. Regarding the precious post, there is no appeal process beyond the Supreme Court. Any ruling by the Eight Circuit, however, is subject to appeal. Though the Supreme Court does not have to hear an appeal, public interest in antitrust cases involving professional sports will likely force their hand.

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