NFL Players' Union is no more... so what does that mean?

 My take on the decertification is that it was virtually inevitable.  I do not believe the players' ever intended to reach a compromise agreement, and their ridiculous last minute request for 10 years of audited financials for every team confirms this point.

Nevertheless, we've finally gotten to the next step in the process.  Now the owners have announced their lockout, which is already being challenged in court.  It may take a month for a ruling, and that ruling will be significant.  Then there's the pending claim filed by the NFL with the Nat'l Labor Relations board, that the decertification is itself a sham ("if it walks like a duck..."). 

Personally, I say just get it over with, dadgummit.  The players aren't going to get a better deal than the last offer from the owners (although somehow the ex-union disputes what the NFL claims was in the proposal).  By challenging the salary cap, they also stand to lose salary floor and minimum player salaries. 

At this point, well, ...

Its a MADHOUSE! (Planet of the Apes, 1968) - Edited (via 2privatus)

According to Gabe Feldman (or, as one astute poster on the previous thread referred to him, "my little perfesser"), in his recently updated article (read here), this is the situation currently from a legal perspective:

Can the owners lock out the players if they have already dissolved their union?
Now we're dealing with completely uncharted territory. Once the players dissolve their union, any attempt by the owners to lock them out could be challenged as an antitrust violation. The argument would be that the teams have unreasonably restrained trade by agreeing to refuse to deal with all of the players.

Additionally, the players could argue that the lockout is an unfair labor practice that interferes with their right to choose whether or not to form a union. Essentially, the players would be claiming that the owners are forcing them to form a union (Why would the owners force the players to form a union? -- to get the antitrust protection of the non-statutory labor exemption.)

Either way, if the players dissolve their union, they will likely immediately file for an injunction that seeks to prevent the owners from locking them out. 

If the owners can't lock out the players after they dissolve their union, what happens?
The owners would likely agree on rules to continue operating the league, and the players would challenge some of those rules as antitrust violations. Any rules that the owners agreed to (including an agreement not to run the business at all), could be subject to antitrust attack.

What has happened when unions in other industries have decertified/disclaimed interest?
Good question (thanks). Still in uncharted territory here. There is not much (if any) precedent out there to guide us in these situations, as unions in other industries usually spend time figuring out how to stay unified, not how to dissolve.

Authors note: The union has already filed for an injunction to prevent a lockout.

Decertification/disclaimer of interest 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/disclaimer really that powerful?
Yes and no. Yes, because it subjects the owners to antitrust attack and treble damages and could be used to block an owner lockout. Even the mere threat of decertification or disclaimer can help shift collective bargaining leverage in favor of the union.

No, for two reasons: First, depending on the timing of the disclaimer, the NFL will try to challenge it as a "sham." In essence, this argument is that the dissolution of the union 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 disclaiming 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.

In other words, the owners will use the "duck" defense- if it looks like a union, talks like a union, and acts like a's a union (and therefore the players can't bring an antitrust suit).

Second, the NFL will argue that the NFLPA's sham disclaimer 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.)
(Update: the NFL owners recently filed a claim with the NLRB arguing that the NFLPA has not bargained in good faith because of their plan to dissolve the union.)

And, even if disclaimer is successful, it is only the first step in a lengthy process. Disclaimer 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.

Are there any other risks to dissolving the union?
Yes. Players will also lose all of benefits contained in the CBA. This includes pensions, insurance benefits and medical benefits. Other benefits of the union, such as control over agent certification and group licensing rights, could also come under attack. Additionally, if the union no longer exists, the owners will be free to implement any rules they want (including, for example, removing the minimum player salary and the salary floor).

What would the players be challenging under antitrust law?
Section 1 of the Sherman Act prohibits agreements that unreasonably restrain trade. Generally speaking, an agreement is an unreasonable restraint if its anticompetitive effects outweigh its procompetitive benefits, as judged under the "Rule of Reason." The players would be arguing that all rules that restrict a player's ability to make money or restrict a player's mobility -- including the salary cap, the draft, and free agency restrictions -- are unreasonable restraints.

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 decided under the "rule of reason".

And from part 2 ( read part 2 here ) 

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 (see the chart here for more details).

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...

*Technically, the NFLPA is "disclaiming interest" in representing the players, and the players are decertifying the NFLPA as their representative, but I refer to it all as "decertification" for sake of simplicity.


Recent tweets by Gabe Feldman:

Gabe Feldman

If owners implement rules, might eliminate salary cap, but also salary floor + minimum player salaries. Erasing minimums not antitrust issue
Gabe Feldman
Don't think will get this far, but players have solid antitrust claim against salary cap. League survived without it this year
  Gabe Feldman
@ Expired CBA had provision for upcoming draft...
Gabe Feldman
NFL players also claim that salary cap, rookie salary pool cap, franchise tag, and other player restrictions violate antitrust law.
Gabe Feldman
As expected, NFL players claim that a lockout would violate the antitrust laws and ask for injunction to block the lockout.
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