Antitrust litigation gives players a powerful weapon, but there’s risk in using it

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The traditional union model doesn’t give players maximum leverage against the league, because the fundamental differences between football and other industries make it much, much harder for NFL workers to endure a work stoppage. As noted on Saturday, the strongest potential weapon comes from the players’ power to shut down the union and to proceed as individuals who have the same rights that individuals would have against independent businesses that attempt to coordinate the handling of their workforces.

It wasn’t the 1987 strike (a Shane Falco failure) that brought about almost true free agency. That came from the Reggie White antitrust lawsuit filed after the strike ended and the union decertified.

Nine years ago, when the league locked out the players and continued to lock them out even after the union decertified again, the players had a tiger by the tail. And if the players had opted to hold on — if they’d allowed a full season to be scrapped by a lockout eventually deemed to be illegal — the players ultimately could have collected every penny that they all would have made during the lost season. Times three, under the antitrust laws.

Fast forward to 2021, if a new CBA isn’t reached. League locks out union. Union decertifies. Lockout continues. Antitrust lawsuit challenges lockout of non-union workforce as an illegal action by 32 independent businesses. The players lose $9 billion if the season isn’t played. And if they win the antitrust lawsuit, the verdict would be TWENTY-SEVEN BILLION DOLLARS.

It’s a calculated risk for the players. They’d have to be willing to skip a full season and to lose the money that would go along with it, in the hopes of eventually (and it could be years) getting three times what they would have gotten. The other reality, of course, is that the players also would have to be willing to not play for a full season.

It would be easier, but less lucrative, for the players to decertify the union if the league implements its last, best offer after after the current CBA expires. That way, the players could keep playing football and getting paid to play football while challenging all antitrust violations lurking within work rules applicable to 32 independent businesses — from the salary cap to the franchise tag to the draft, and beyond.

The ultimate verdict would be much smaller, but the end result could be complete chaos, for everyone. The worst-case scenario would be that the 32 teams would have to operate as 32 fully independent operations with no limits on how much, or how little, players could be paid. There would be no limits on player movement beyond the terms of his contract, and there would be no draft to ensure the orderly, systematic distribution of incoming players.

Also, there possibly would be no impediment to a team choosing to pilfer college players only one or two (or no) years after high-school graduation.

Of course, before chaos unfolded the players would be able to reconstitute the union and craft a labor deal based on the leverage that looming chaos would give them.

Whether the league locks the players out in 2021 or simply implements the last, best offer and dares them to strike, the antitrust option becomes a true nuclear option — if the players are willing to see it through to the point that the fuse disappears inside the bomb.

9 responses to “Antitrust litigation gives players a powerful weapon, but there’s risk in using it

  1. That scenario would be a disaster for the league, the players, and the fans. It would drastically impact the TV deals–which means both the players and the owners lose.

    Some degree of “trust” behavior is good for the league, players, and fans. Giving small market teams a chance to compete and remain in their locations is a good thing.

  2. It were that easy baseball & the other leagues would have challenged the anti trust exemption (and won) years ago.

  3. 32 independent businesses and no salary cap equals a loss of parity, one of the NFL’s greatest strengths. It would welcome super teams and destroy all the year round events the NFL has been leveraging into money. What’s fair may definitely not be the right course of action as far as a good product is concerned.

  4. Decertification eliminates the CBA and any restrictions within it. That means there would be no split of the active TV deals and the owners could pay anybody, including prior union members whatever they want to. If the owners individually believe the QB money is out of hand they could easily offer only $10M to any player. They could field teams with a league minimum salary between .5 and 1 million dollars per season. If the league acts like 32 independent businesses then the players have nothing to sue about in an anti-trust scenario. Where is the leverage for the players if the collective owners can pay the players $2B or less, and then split the other $7B (currently going to the players) amongst themselves rather than continue giving it to the players? Your decert strategy only works if the owners are collectively stupid and that just isn’t the case.

  5. The risk is not losing a single NFL season to a lock out. The risk is losing the fans to a lock out. Without the fans, the billionaire owners are still rich. Just less so. Without the fans, where are the players?

  6. Everyone wants to complain….the owners want to keep control….the owners want to make more money….

    Fact is the Owners maintaining control is the best thing for the League.

    The owners adding games or tweaking the Playoffs etc makes them AND the players more money.

    This fool hardy arguments and considerations by players will simply damage their own membership, damage the League, the product, the viewership.

    What has all the Power to the Players in the NBA wrought?

    The Power of the Baseball Union and guaranteed salaries?

    These Leagues have lost eyeballs….the last bastion of Ownership having the Power is the last great League!

  7. Can they decertify and then renegotiate new TV deals and contracts? If so, no need to pay a union then.

  8. I sure hope the players hire Florio as their adviser and follow all his advice. So hoping for a player strike and they are replaced by those more grateful.

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