As a follow-up to James' excellent articles regarding the CBA, I must say that all the clamoring and fear about a pending lockout is likely unfounded. I first came across an article written over a year ago by Wm. David Cornwell, Sr., President of the sports law firm, DNK Cornwell, which I referenced in the following fanpost linked here.
Then, today, I went back on the research trail and found the following published on Feb. 9, 2011 by Gabriel A. Feldman, Law professor; Director, Tulane Sports Law Program, which completely corroborates Cornwell's views.
If you don't read these articles, then you will suffer in ignorance and doubt, that's all I can say. However, I'll continue to beat the drum of reality, and hopefully you will feel better.
The biggest question in my mind about these very clear-cut positive articles is: Why the fuck aren't the true "sports journalists" all over this stuff? I guess there's a couple of possibilities. First, it pretty much kills the suspense about a work stoppage, thereby cutting into their opportunity to sensationalize the whole thing. The second possibility is they're just too lazy to find this stuff, or even to talk to a Legal Specialist in Sports Labor Law. But, the truth is out there, and now it's in here. I'll give you some of the more interesting points from the article written just 6 days ago.
Here's where we are, in a nutshell:
The basics are easy: the owners can lock the players out or impose their "last, best offer" upon reaching a bargaining impasse. The players can strike, or decertify and bring an antitrust suit. But, what does all that really mean? Below, I answer a series of questions about the legal issues and options that might arise over the next several weeks.
What is a lockout?
A lockout is the "withholding of employment by an employer from its employees for the purpose of either resisting their demands or gaining a concession from them." In other words, a lockout is when an employer refuses to let workers work, and therefore get paid, as a form of leverage. A lockout is prohibited if it is motivated primarily as an attempt to discourage union membership or interfere with employees' organizational rights. Lockouts can occur before or after a bargaining impasse has been reached.
The owners' second option is to wait for impasse to impose their "last, best offer" rather than locking the players out. What does that mean?
After bargaining to impasse, labor law permits employers to unilaterally implement changes to the terms of the previous collective bargaining agreement. These changes must be "reasonably comprehended" within the employer's pre-impasse proposals -- in essence, this means that, after the impasse, the owners can implement their last, best offer as the new set of rules to govern the NFL and its relationship with the players.
Now for the juicy stuff:
Why would the owners implement their last, best offer?
It's an alternative to a lockout. By implementing their last, best offer, the owners would essentially be saying to the players, take it, leave it, or decertify). By implementing their last, best offer instead of locking the players out, it would force the players to either accept the terms while continuing to negotiate, strike, or decertify. In any of those events, the owners would not be the ones responsible for a work stoppage. The NFL owners implemented their last best offer during the 1989 collective bargaining negotiations. As I discuss below, those negotiations ended with decertification and an antitrust suit.
This next excerpt is even juicier, because five days before it actually happened, it predicts the lawsuit filed yesterday by the NFL:
Decertification has been referred to as the "nuclear option," the "silver bullet," the "doomsday weapon," and a "tender contemplation on duty and the crippling weight of expectancy" (that last one may have been about The King's Speech). Is decertification really that powerful?
Yes and no. Yes, because it subjects the owners to antitrust attack and treble damages. Even the mere threat of decertification can help shift collective bargaining leverage in favor of the union.
No, for two reasons: First, depending on the timing of the decertification, the NFL will try to challenge the decertification as a "sham." In essence, this argument is that the decertification is not "real" -- it is being done merely to improve the players' bargaining position, and in reality the NFLPA is still acting as a union behind the scenes (and, they will point to the decertification and re-certification in 1989 as further proof that it is being used as a bargaining tactic rather than for any genuine reason). The NFL will argue that the union is still representing the players and still bargaining on behalf of the players, and therefore the labor exemption should continue to apply.
Second, the NFL will argue that the NFLPA's sham decertification violates its duty to bargain with the NFL in good faith.
(The NFL made both of these arguments in 1989, and was unsuccessful on both counts.)
And, even if decertification is successful, it is only the first step in a lengthy process. Decertification merely opens the door for the players to bring an antitrust suit against the NFL and its teams. The players will then have to fund a potentially long and expensive antitrust suit -- an antitrust suit they could lose.
This next clip bodes well for the owners, if the players do in fact decertify:
If it comes down to it, will the players win their antitrust suits?
Perhaps, but perhaps not. Antitrust cases are complex and unpredictable, even more so in the sports arena. Each side does have a few points in their favor. On the one hand, courts have already held that a variety of player restraints were unreasonable -- and thus illegal -- under the Sherman Act. For example, courts have struck down age restrictions, player drafts, and free agency restrictions, including NFL's "Plan B Free Agency," as violations of the Sherman Act. (All of these restrictions have reappeared in sports leagues -- immune from antitrust attack -- as part of league collective bargaining agreements.) On the other hand, modern versions of these player restraints are less restrictive than the earlier versions that were challenged (and defeated). And, the numbers are not on the players' side -- from 1999 to 2009, defendants won 221 out of 222 antitrust cases.
You want more, you say...:
When can the players decertify?
Whenever they want, but here's where things start to get interesting (in the event that you didn't find the other stuff interesting). As agreed to in the current CBA (in Article LVII, Section 3), if the players wait until after the expiration of the CBA to decertify, two things happen: first, the players cannot bring an antitrust suit for at least six months (or until the parties bargain to impasse, whichever happens last); second, the owners cannot challenge the decertification as a sham.
And saving the best for last:
Would the NFL owners be permitted to lock out Brett Favre, and only Brett Favre?
Good thought, but it would not be permitted under labor law.
My take: The owner's are doing their best to prevent lengthy, costly, and potentially risky lawsuits that would last years. But in the end, it's the owners holding the best hand. This impasse is about the percentage of revenues allocated to player salaries, which is not, based on my understanding, a viable anti-trust argument. That doesn't mean the players won't bring other, more questionable practices (the draft, free agency, salary cap,etc.) into the courts to gain leverage, prompting concessions from the owners. But, in the end, a deal gets done without a work stoppage.
Again, read these articles and you'll instantly be more informed than the talking heads and sports writers that, for whatever reason, refuse to see what is really going on.