How likely is it that the court-ordered mediation straightens out the whole CBA mess? I’m going to stick my neck out and say... not bloody likely. So, then what happens? Well, after scouring the web for information, I’ve found that most Sports Attorneys and Legal Scholars skate around the myriad of possibilities, and most are very careful not to even speculate. Of those that do, I’ve found vast discrepancies, ranging from a negotiated CBA to a lost season. After doing lots of research, I’ve at least become minimally educated in the relevant issues and how they could be dealt with through the legal system (Sherman anti-trust laws, decertification, appeals process, etc., etc., ad infinitum).
The pending ruling on the legality of the Lockout could go either way. I found it interesting that Judge Nelson’s plea for continued mediation included a warning. In essence, if she has to make a ruling, she will be writing new law. She further warned of the distinct possibility that one side or the other, or both, will not be happy. Obviously, she was encouraging good faith bargaining as the best answer, along with a Thor’s hammer version of "or else."
Most of the experts agree that Judge Nelson’s ruling on the Lockout injunction will, with high probability, be upheld on appeal… no matter which way the ruling goes. So, if the current mediation bears little or no fruit, the Injunction ruling by Judge Nelson gives strong leverage to whichever side wins.
However, since I'm allowed to have an opinion as a fan, I don't think it will ultimately matter much which way the ruling goes, at least from a fan's perpective.
In my admittedly "shiny" opinion, the 2011 season will be played under the 2010 rules.
For those readers seeking to learn more about what is going on, I encourage you to link to and read these articles, which are three of the most informative I've been able to find. These articles provide more information about likely outcomes (substitute Judge Nelson for Doty)..., NFL Labor history/precedent... NFL economics...
Let's look at the two realistic scenarios.
1) Injunction to lift the Lockout is denied, and the decertification is upheld (likely) by the NLRB: While this could portend a long-term stoppage, that's not necessarily the case. According to Michael McCann, ("Sports Law Professor and Sports Law Institute director at Vermont Law School ...)
If the owners wanted to restore football, they could end their lockout while the NFLPA was decertified and NFL players and teams would operate as if the expired CBA was still in effect. The NFLPA could then be recertified when NFL players were ready to strike a new CBA with the owners. This is what happened in the late '80s/early '90s, with games played in spite of an expired CBA and a decertified NFLPA.
In such instances, when NFL players have no collective bargaining entity, a judge or mediator would likely facilitate negotiations between players and owners, and once a deal between them is reached, the NFLPA would recertify and sign off on the new CBA. This happened in the early 1990s in antitrust lawsuits brought by Freeman McNeil, Reggie White and other NFL players against the NFL over various player issues -- these players brought their lawsuits while the NFLPA was decertified. The judges in their cases settled the specific legal issues at question and, in doing so, helped to broker an agreement between the NFL and NFLPA.
In this scenario, I have to note that there is also a chance the owners could keep the lockout in place while the Players' lawsuits work their way through the courts. With no collective bargaining entity, the Players would be totally dependent on the courts to facilitate negotiation/mediation.
My prediction: The owners would keep the Lockout in place for a while (weeks, not months), trying to pressure the players to recertify and accept the last offer; the one they walked away from before. But, if the players refuse to capitulate, I think the owner's would lift the Lockout, submit to mediation, and play this season using 2010 rules; similar to what happened 20 years ago. Having the stronger bargaining position, however, I wouldn't be surprised if the owners at least changed the owner/player revenue split %, while taking a few more millions off the top.
2) The Injunction is granted (the Lockout is lifted by court order): Proving the Lockout is causing irreparable harm to the players is questionable, but the Judge has lots of latitude to rule for them anyway. As several experts admit, every sports league violates anti-trust laws. Such a ruling would make it virtually certain that we’ll have a 2011 NFL season.
My prediction: The players would recertify, as they would be willing to continue playing under the expired CBA rules as negotiations go forward. In other words, the 2011 season goes forward using the 2010 rules.
Wow, all likely roads lead me to the same conclusion. So, for kicks, my follow-up story will take a look at the major rules set used in 2010, and specifically what it means for our Panthers …