Please see update at bottom of post:
Imagine my surprise when I received an email response from Gabe Feldman, the sports attorney from Tulane and the primary source for my post last week. Mr. Feldman, in addition to posting a comment in my earlier article, wanted to provide a link to his latest update regarding the status of negotiations. I again want to extend my appreciation to Mr. Feldman for this information, and I will again share his insights with the folks here. Link to story here.
I encourage you all to read the complete article, but I will provide what I consider to be the most relevant information below...
It's obvious the League's attorneys know what they're doing:
As we get closer to the expiration of the NFL Collective Bargaining Agreement, we also get closer to the possibility that the NFL players will exercise their "nuclear weapon" -- decertification followed by an antitrust suit against the NFL. The NFL took an aggressive step towards disarming that weapon this week when they filed an unfair labor practice charge with the National Labor Relations Board, arguing that the NFLPA's decertification* strategy is a sham and violates the union's duty to bargain in good faith.
This is a potential game-changer. The NFL is essentially trying to block the NFL players from decertifying their union. Why is that significant? As I discussed earlier, the decertification/antitrust suit one-two punch is the NFLPA's most powerful economic weapon for two reasons. First, it allows the players to bring an antitrust challenge against the NFL's player restraints. Second, it potentially blocks the ability of the NFL to lock out the players. So, an order blocking the NFLPA from decertifying would prevent them from exercising their strongest offensive (an antitrust suit) and defensive (blocking the lockout) weapons, and give the owners a big advantage at the bargaining table.
Regarding the owners' opening the books; well they simply don't have a legal obligation to do so. But is that the best way to negotiate? Does it make it appear there's something they're hiding? Or, maybe an evaluation of each teams' books would create a mixed bag of results and just prolong the negotiations. Tough one to figure out:
Why can't the NFL players force the owners to open up their books and show them their financials? Didn't the NBA owners volunteer to show the NBA players their books?
This has become one of the focal points of the negotiations. The owners claim they need to pay the players less because of rising costs, but they refuse to reveal the details of these costs. Whether or not this is a smart negotiating tactic, the NFL owners have no legal obligation to open up their books. Labor law is very clear on this point -- as long as the owners don't claim an "inability to pay," the players cannot compel them to open their books. The owners can claim, however, that they are having "general economic difficulties," as long as they don't say "we can't afford to pay the players." The NBA owners, however, have previously claimed an inability to pay, so they knew the players were entitled to see the books. For the NBA, the argument is "we can't pay." For the NFL, the claim is "we won't pay." That's the difference between open and closed books...
Do the players have any access to the financials of the teams?
Yes. The players have a right to an audit that allows them to see the revenue side of the owners' books, but they do not have a right to see the cost side. Of course, the owners have argued that they need to pay the players less because of rising costs and decreasing profitability. That is not a very convincing argument -- for the players or the fans -- if the owners refuse to put numbers behind the rhetoric. Without full access to the books, there is simply no way for the players to evaluate the profitability of the teams...
Impact to the players' bank account is real:
What happens to the players who are under contract for next year and beyond? Will they get paid during a lockout?
No. The general rule under labor law is clear -- employers do not have to pay employees during a lockout. After all, the lockout is an economic weapon owners can use to give them leverage during negotiations. It is designed to put economic pressure on employees by depriving them of the ability to work and the ability to get paid. If employees were paid during a lockout, the lockout would be less of a threat and the employees would have little incentive to return to the bargaining table and reach a deal.
What about the small number of players with guaranteed contracts? Will they get paid during a lockout?
That's a slightly tougher question, but the answer is still (most likely) no. ...
... we can look to the past and see if this issue has come up in other leagues. And, it has. During the 1998 NBA lockout, more than 200 players with guaranteed contracts filed a grievance before an independent arbitrator claiming that they were collectively owed over $800 million. The arbitrator ruled against the players, holding that the guarantee language did not override the default rule.
Bottom line: unless a player negotiated a guarantee in the event of a lockout, he will likely not be paid.
Is March 3rd truly "D-Day" for a new agreement?
No. The NFL and the NFLPA could agree to extend the deadline for the expiration of the CBA. In fact, in 2006, the two sides did just that, agreeing to push back the expiration date of the CBA (and the start of free agency) a week while they worked out a new deal.
Regarding Coaches being paid
Will coaches be paid during the lockout?
That depends. Most head coaches will receive their full salaries even if no football is played next season. Assistant coaches won't fare as well. Some teams have the right to terminate (without pay) their assistant coaches in the event of a lockout, while others are obligated to pay their assistants their full salaries. Most teams fall somewhere in between, with their assistant coaches getting paid based on how many games are missed.
Ticket refunds, anyone?
What about the fans? If they bought tickets for games next season and there is a lockout, will they get a refund?
Yes. The NFL has announced that fans with individual game tickets and season tickets will be offered full refunds if games are canceled because of a lockout.
THE BOTTOM LINE
It's all a guessing game at this point, but what is the likelihood of an extended work stoppage?
As we get closer to the expiration of the NFL Collective Bargaining Agreement, the great unanswered questions remain: Will there be a work stoppage? And, if so, how long will it last? It's anyone's guess as to when the two sides will reach an agreement (and everyone is guessing), but looking back at the past is often a good way to predict the future. And, a closer look at the "doomsday" work stoppages of the past -- where at least one regular season game was canceled -- reveals a fairly clear trend. Significant work stoppages occurred when one side was looking for a sea change--some radical transformation of the relationship between the parties. For example, in 1998-99, the NBA owners insisted on (and got) a cap on maximum player salaries. The owners locked out the players and 464 total games were canceled, including the NBA All-Star Game. In 1994-95, the MLB owner insisted on (and did not get) a salary cap. The players went on strike and 920 games were canceled, including the postseason and the World Series. In the best professional sports work stoppage movie of all time, the 2000 movie The Replacements (the Detroit News raved, "it's better than average"), professional football players went on strike late in the season, apparently because of "salary disputes" (it's not clear who got what, but Shane Falco did save the day).
And, most recently, in 2004-2005, the NHL owners insisted on (and got) a salary cap. The owners locked out the players and the entire season was cancelled, including the playoffs and the Stanley Cup. Other lengthy work stoppages were caused by fights regarding basic rights of free agency for the players. In each of these cases, one side claimed that the current system was broken.
In the current negotiations, we're not dealing with fights over the creation of free agency or the implementation of a salary cap. The players have free agency and the owners have a cap. But, are the owners asking for a sea change? That's a difficult question. One could make an argument that the NFL's latest proposal for a rookie wage scale--which could actually impact a majority of NFL players--would represent something close to a sea change. But, despite the NFL's proposal, it's difficult for anyone to argue--even the owners--that the system is broken. The NHL owners were willing to cancel an entire season because they believed they lost less money by not playing games than by playing games. That is certainly not the situation facing the owners and their multi-billion dollar television deals.
So, if the past is any guide, we may not be looking at a major work stoppage for the NFL...
And again, saving the best for last:
Can Bill Belichick videotape other teams' practices during the lockout?
Players are prohibited from entering team facilities during a lockout, so without a new CBA in place, there would be no minicamps, no training camps, and no practices, so this shouldn't be an issue. But, good question.
If you want more good stuff, especially regarding whether players can join other leagues, there's more good information to be found in the linked article.
I've replied to Mr. Feldman with a few more questions, and I hope he'll respond either by email, or better still, by commenting in this article (we really like expert contributor's, Gabe, a lot)! Here are the questions I submitted, with one contributed by Jaxon:
1) With so much at stake, why do you suppose the mainstream sports media outlets aren't seeking out specialized legal experts such as yourself?
2) What do you make of the Federal Mediation and apparent renewed vigor in the negotiations? Do you consider it likely that the union recognizes their weak negotiating position, and they will suddenly be more inclined to compromise?
3) (from Jaxon) I heard from someone that another reason the owners want to dissolve the union and cba is to get a new Judge over the matter. ie..the Judge that hears grievances...such as when a Judge decided Vick could keep most of his signing bonus. The current one is too 'Pro Labor' for them. Have you heard anything like that?
That's all I have for now. Always remember, an informed fan is more inclined to be correct during drunken arguments. So read this stuff, and I guarantee some of you will be less likely to act like a drunken ignoramus.
Updated update: After reading ST's comment, I realize that this article on its own doesn't provide the complete context, as it is a follow-up to a previous article. So if you didn't read my earlier post, it may seem as if I'm reaching here. The real zinger is that, barring an agreement, the owners can legally just claim an impasse and unilaterally impose the lastest offer that they made. And, if the NLRB rules that the union can't decertify, then they can't file anti-trust suits. Read here:
As you can see, there is no need for the owners' to impose a lockout, and I haven't heard any rumblings about a possible players' strike.