View Full Version : Lockout primer: Questions, answers, winning scenarios

04-05-2011, 09:53 PM

Lockout primer: Questions, answers, winning scenarios

By Clark Judge
CBSSports.com Senior Writer
April 5, 2011Tell Clark your opinion!

The NFL and its players resume talks Wednesday, but not to each other. Instead, they present their cases to a federal judge in Minneapolis who determines where the lockout heads next.

That would be Judge Susan Nelson, who hears motions brought by past and present players (Tom Brady vs. NFL and Carl Eller vs. NFL) seeking preliminary injunctions to end the lockout but who is not expected to make a decision until later this month.

When that happens, expect an appeal, more court decisions and, maybe, just maybe, a resumption of NFL play. For now, at least, and at last, the ball is in someone's court, and, yes, I mean that literally.

That's a start, only the question is: A start to what? Keep reading.

1. What is the gist of what we're about to hear Wednesday?

The NFL believes it is locked in a labor dispute with its players. The players believe they're locked in an antitrust action with the NFL. Essentially, it's a question of labor law vs. antitrust law, and each side insists it is right. Both make compelling cases, and the players have a history of success with litigation. But the NFL two months ago launched a pre-emptive strike by filing a complaint with the National Labor Relations Board (NLRB), declaring the decertification of the NFL Players' Association a "sham," or unfair labor practice, intended to circumvent the collective-bargaining process. If the court rules in its favor -- in other words, if it were to see this as a labor dispute -- the NLRB would be the next stop, and it isn't expected to rule on the league's motion for many months ... maybe even a year.

2. How significant is Wednesday's court appearance?

Well, look at it like this: It's the first time since talks broke off on March 11 that the two sides have been in the same room. In the interim, each pushed its case through the media. Now there's a more effective arbiter than the court of public opinion. Look for both sides to make reasoned and impassioned cases to Judge Nelson, who presided over Dryer vs. NFL until December, 2010. The Dryer case involves former NFL players suing the league for using players' names and images without compensating individuals. Nelson was removed from the case after President Obama nominated her for a seat on the U.S. District Court for the District of Minnesota, and she was approved by the U.S. Senate.

3. Should we expect a decision Wednesday?

No. That doesn't mean one won't happen. But it's unlikely, as in highly unlikely. Most persons expect Judge Nelson to hear arguments from both sides before taking a week to 10 days to announce a decision. There's also the possibility that she requires additional documentation, then schedules more hearings, which would push a decision deeper into spring. Plaintiffs in the Brady and Eller cases have 20 minutes each to make arguments, and the NFL has 40 minutes to respond. Most persons expect the two sides in court for approximately two hours. In a perfect world, we gain a ruling from the bench Wednesday, followed by an expedited appeal, followed by an appellate court decision by Friday. But get real: There's a better chance of the Pittsburgh Pirates winning the World Series. People tell me you may get a feel where Judge Nelson is headed by questions she asks Wednesday, but that's tricky. All I know is that one attorney I trust thinks a backlog of cases in Minnesota means it's probably closer to two weeks before Judge Nelson makes her decision.

4. So why is Wednesday such a big deal?

Because there's been no movement toward a resumption of negotiations. Both sides called for it, but neither budged -- and neither was expected to before the courts intervened. Essentially, this is a vehicle for the NFL and its players to re-state their cases, only this time not before a mediator but before a federal judge. The mediator sat through 16 negotiating sessions without much happening, and the two sides responded by digging in their heels -- each telling us that it is on the side of what's right and just and fair. Well, only one can be, and it's up to Judge Nelson to determine which one. Wednesday is important because it's the first step toward a resolution, no matter whom Judge Nelson winds up favoring. But don't kid yourself: This will not be resolved in a day or a week.

5. What is the players' position here?

That this is an antitrust dispute that demands court intervention. They contend that owners spoiled for a lockout for years. As proof, they point to the hiring of Bob Batterman as an outside labor counsel, with Batterman involved in the NHL lockout in 2004-05, and TV deals where the league was found to have acted against players when it renewed its contracts. In Brady vs. NFL, players seek a full trial to determine if the NFL violated federal antitrust laws by locking them out. In the meantime, they'll try to win injunctions to end the lockout, the draft, franchise and transition tags, restricted free agents and the salary cap. They also seek rulings to compel clubs to resume paying players, treble damages and declare that the NFL waives its right to antitrust exemption by declaring the decertification of the union to be a sham. In essence, they're challenging the NFL's restrictions on competition, restrictions that made it exempt while the NFLPA was certified.

6. What is the NFL's position?

That this is a labor dispute and that courts have no jurisdiction in labor disputes. Furthermore, it claims the lockout is a labor right of employers, just as a strike is a labor right of employees. It also maintains that the players' decertification is illegitimate and was undertaken for tactical reasons, essentially carting out "The Duck Test" -- that is, if it walks like a duck, quacks like a duck and looks like a duck ... OK, I think you get the idea. The league insists that the union still operates as a union, though it doesn't call itself one, and that the players' move to decertify was intended only to turn a labor dispute into an antitrust issue -- or, as it says, in a 49-page legal brief, that decertification "acted as a switch that turned the labor exemption off." In that brief, the NFL leans heavily on the Norris-LaGuardia Act, a 1932 federal law that, as the NFL says, "prohibits injunctions against employer lockouts and employee strikes alike because the policy underlying the Act opposes federal court intervention in private labor disputes." League attorneys contend that when it's a question of labor vs. antitrust before courts, labor usually trumps because courts generally favor two sides reaching a settlement on their own. We're about to find out.

7. What happens if the court rules in favor of the players?

An injunction would lift the lockout, which means players would return to work, free agency would resume, trades could be made and players would be paid. But it would, as one attorney described it, be "a very thorny injunction" because, by resuming business without a union the league is no longer exempt from antitrust violations. Talk about a conundrum. By ruling the league in violation of antitrust law, the court could, by ordering it to lift the lockout, plunge it farther into that violation. "I don't think it's an easy injunction," said one attorney. That's why the league wants a clarification on the NFLPA's decertification, firm in its belief that the dispute is a labor situation, not an antitrust one.

8. So the NFL would resume immediately, as if nothing changed?

No, not exactly. If a decision favoring players were made, the NFL would ask for a stay of the preliminary injunction, then file an expedited appeal. In all likelihood, that would go to a three-judge panel, and it would take time for a decision -- with another one to two weeks a possibility. If the panel were to uphold the NFL's stay, the lockout would remain in place, and players would file an appeal. In either case, look for someone to appeal Judge Nelson's decision. But overturning a judge's decision won't be easy. The Eighth Circuit would hold it to the "abuse of discretion" standard, and that would be difficult to prove. Bottom line: My guess is we're looking at another two to four weeks before knowing what happens next.

9. And what happens if the court upholds the league?

The lockout continues, which is another way of saying that nothing changes until or unless the two sides resume negotiations.

10. But if the lockout is lifted, then what happens?

Players can return to work, and teams can resume normal operations. But there is no collective bargaining agreement, so the NFL can impose across-the-board rules for the coming season -- with the 2010 model, one that was collectively bargained, the most likely. So what we had last season is what we'd have this season ... until or unless a new CBA is negotiated.

11. But talks would resume immediately, right?

Not necessarily. In fact, I'd say no. I'd also say that while lifting a lockout might appear to be a victory for the players, it would not necessarily drive owners back to the bargaining table. In fact, I would argue it would do anything but. Reason: The system they had in an uncapped year was friendlier to them than it was to players ... and it was friendlier to them than it had been in any season since 1993. There was no salary cap. There was no salary minimum. Benefits were cut drastically. And unrestricted free agency occurred after six years, not four. Tell me what player wants to operate in a system like that. "Would we be happy?" asked New England player rep Matt Light. "I will speak for myself, personally. No." If anything, having the lockout lifted should compel players to return to the negotiating table to find a deal better than the one they just operated under. The question, of course, is how can players negotiate with owners without a union? Answer: Attorneys for each side can do it, as they did after the 1987 strike, and a settlement could be supervised by Judge Nelson. If that were to happen, figure the NFLPA to re-certify and sign off on a new labor deal. "We know this is going to end with a CBA agreement," said one management source. The question is: When?

12. Bottom line: What scenario is the easier path to a new CBA or long-lasting labor peace?

Just an opinion, but not a decision that puts players back where they were last season. In other words, the decision that makes a CBA more likely in the short run is a continuation of the lockout -- provided, of course, it's upheld as legal and appropriate. And here's why: Because it hurts owners and players, which means both sides should want out. Look, both parties run risks in lockouts. Nobody wins, and everyone but lawyers lose. I know players don't want to hear that, but, look, both sides here are getting hurt. Yeah, OK, owners have deeper pockets, but they still get hammered. Plus, they don't have that $4 billion in TV money they were counting on from their last deal. Without a lockout, players finally are paid but return to work under unfriendly circumstances that won't compel owners to rush into a new deal. You and I are happy because there will be games, and players are happy because they're getting money where they're getting none now. Granted, owners run the risk of treble damages, which could squeeze them into action. But the question was: Which is the easier path to a new CBA or long-lasting peace? I think we all agree that a lockout is good for nobody. But it might compel the two sides to realize what they're missing -- and that's a chance to hammer out a new deal immediately to keep a profitable business in business.