The NFLPA's power play: Cease to exist ..
When the union decertifies, as it will shortly, the landscape will change dramatically
By Lester Munson
The expiration of the collective bargaining agreement that governs the NFL arrives at 11:59 p.m. ET Thursday, and the players' union is about to decertify. The NFLPA's decision to end its existence as a labor organization could come at any moment. The union's decision and its timing raise significant questions about the relationship between the players and the owners, as well as the status of the NFL's 2011 season. Here are some of the questions and their answers:
The players and the owners are still working with a federal mediator, and the CBA hasn't yet expired. Why decertify now? Why not wait until they have exhausted any chance of negotiating an agreement?
There are two reasons. First, if the union does not decertify now, before the current bargaining agreement expires, it cannot decertify for six months, according to a clause in the CBA. There is no reason for the players to wait until September to use their best weapons. (We'll get to exactly what those weapons are in a moment.) So far, it appears that bargaining as a union has accomplished nothing.
Second, and perhaps more importantly, by decertifying now, before the expiration of the CBA, the players are trying to stay in the Minneapolis courtroom of U.S. District Judge David Doty, who over the years has issued several rulings that were unfavorable to the owners. That includes a ruling late Tuesday concerning the NFL's television network contracts. (More about that later, too.) Doty, 82, an ex-Marine who was appointed to the federal bench by Ronald Reagan in 1987, has presided over disputes between the players and the owners since the early '90s. Under his guidance, the players and the owners made the deal that is now expiring, a deal in which both sides prospered at levels beyond expectation. But Doty's jurisdiction over the NFL's labor case expires with the current agreement, meaning Thursday night. If the players wait and decertify later, they would have no chance of staying in Doty's courtroom and would have to take their chances before another judge. But if they decertify before midnight Thursday and then immediately file antitrust litigation, that litigation automatically goes to Doty, who will maintain control of it until its conclusion even if the CBA is no longer in effect.
How will the owners react to decertification and litigation?
It will not be a surprise for the owners, but they will not be happy. They will quickly claim that the decertification is a "sham," which is the word the league used in a complaint at the National Labor Relations Board. They will say that the players will continue to act like a union, look like a union and sound like a union. They will say that it's a labor dispute and does not belong in a courthouse. And they will say that the only purpose of the decertification is to keep the litigation in Doty's courtroom. They also will say, as they have said previously, that Doty is the wrong judge. During Doty's consideration of the Michael Vick bonus dispute, the owners and their lawyers, in a highly unusual move, attacked Doty as biased and accused him of misconduct in his conversations with the players and their lawyers.
It's safe to assume, then, that Doty's decision Tuesday about the NFL's television contracts fits into the league's unhappiness with his role?
The judge certainly indicated on Tuesday that he is leaning toward the players in the network money dispute. Although the NFL professed to be "prepared for any contingency" in the labor bargaining, the NFL could not be happy with Doty's statements that criticized the league for using TV contracts "to advance its own interests and harm the interests of the players." It is exactly what the NFL did not want to hear from Doty. League officials worked for two years to renegotiate the network contracts to provide $4 billion in income for the owners during a lockout. Although Doty has not yet ordered the money into an escrow, his ruling is a step in that direction. It is one more adverse ruling on the list that the NFL will use as it continues to attack Doty as biased in favor of the players. But there is a solid basis for Doty's preliminary ruling. The agreement between the players and the owners requires the owners to obtain maximum income from television networks that will be shared with the players, and it is clear that the renegotiations the owners initiated in 2008 were designed to provide lockout insurance for the owners.
Is there any validity to the owners' claims that decertification is a "sham" and that Doty is biased?
Probably not. The owners claimed "sham" the last time the union decertified in 1989. The claim did not work then, and it likely will not work now. The owners do not relish their plight in antitrust litigation and will say anything that might help to avoid it. They'll claim "sham," hoping that Doty or judges in a higher court might somehow fall for the arguments. Although a number of Doty's earlier rulings have been in favor of the players, those rulings were not the result of any bias. They were based on the facts and the law, and they were unfavorable to the owners because the owners were wrong. I have worked among lawyers and judges throughout the U.S. for more than 40 years, and Doty is one of the finest jurists I have encountered. He is fair, equitable and just, and he gives both sides ample opportunity to state their positions before he makes a ruling. Doty just backed the union in a dispute over the NFL's television revenue.
Let's back up a moment. How does it happen that these cases always go to Doty's courtroom?
Doty presided over the players' momentous courtroom victories in the early '90s. Although a jury of six women made the most important decision, the judge made additional rulings that helped the players expand on the jury's verdict. The courtroom triumphs gave the players the leverage they needed to extract free agency and other benefits from the owners, as, with Doty's guidance, the two sides negotiated what became the agreement of 1993. The litigation battle left the players suspicious of the owners and their intentions. The players were justifiably worried that the owners would not abide by the terms of the agreement. To make sure that they could enforce it, the players insisted that any disputes over its terms must be decided by Doty. Instead of the usual arbitration procedure that is found in most labor contracts, the 1993 settlement specifies that all grievances and problems must be submitted first to a "special master" selected jointly by the owners and the players, and then to Doty. Numerous disputes have followed the path to Doty for his ultimate decision. He has ruled both for the players and for the owners in these various disputes, but the players and their lawyers know that they will receive fair treatment in Doty's courtroom. However, the process that leads to Doty's door expires with the termination of the current CBA.
Still, won't it look bad for the union if the players decertify in the middle of negotiations? After all, as late as Wednesday, they were still in mediation sessions.
Perhaps, but the negotiations are not going well, and an agreement does not appear likely any time soon. The owners are poised and ready for a lockout. They have been preparing for a lockout for at least three years, renegotiating contracts with five networks to include lockout clauses and inserting lockout provisions into coaches' contracts. It is clear that they are willing to sacrifice an entire season to force the players to accept a reduced share of NFL revenue. In the face of that threat, union decertification will give the players new weapons in the lockout battle, weapons that are not available to a labor union. Relying on these weapons, they hope to be able to make a deal with the owners that they cannot make now in collective bargaining and mediation.
Ahh, the aforementioned weapons. So what are they? What exactly do the players gain when they decertify?
The weapons are an antitrust lawsuit and an injunction that would stop the lockout. When they are an active union, the players cannot file an antitrust lawsuit, and they cannot ask for an injunction. Labor unions are legally barred from such actions. When the players decertify, they become a group of individuals instead of members of a union. Their new status allows them as individuals to file an antitrust suit against the owners and to ask for an injunction that would stop the lockout. It's a difficult lawsuit, but it's a lawsuit the players can, and ultimately will, win. They will be following the litigation path that they followed under the leadership of the late Gene Upshaw, a path that led them to free agency, skyrocketing salaries, vastly increased health and disability benefits, and 18 years of labor peace.
The lawsuit and the demand for an injunction will be based on the premise that the NFL is a monopoly. The league and its lawyers will never admit that the NFL is a monopoly, but it is the only enterprise in the business of buying the services of elite football players. There are other professional football leagues (the UFL and the CFL), but there is only one NFL with five television network contracts and more than $9 billion in annual income. The NFL clearly enjoys a stranglehold on its market. A little more than a year ago, the NFL tried to persuade the U.S. Supreme Court that it is not a monopoly that should be subject to antitrust laws. In American Needle Inc. v. NFL, all nine justices rejected the NFL's claim, a highly unusual outcome in a frequently divided court. Like any monopoly, the NFL has total control of the market for pro football. In numerous previous NFL cases, that has been enough for the players and others to use the antitrust laws to push the owners into agreements that were not otherwise possible.
Will these weapons -- the lawsuit and the injunction -- work? Will they solve the problem and save the 2011 season?
Decertification and antitrust litigation probably have a better chance of producing an agreement than the current negotiations and mediation do. There is little doubt that the players will win at a trial of their antitrust lawsuit against the owners. But a trial is months, or even a year, away. There is, however, considerable doubt that the players will be able to obtain an injunction, a court order that would require the owners to end their lockout. An injunction is the most drastic action that any judge can take. Injunctions are issued only in emergencies when there is no alternative. The owners and their lawyers will argue that there is no emergency, that there is no reason for a court order on a lockout and that the court should slow down and wait for a trial. The players and their lead attorney, Jeff Kessler, will face a serious challenge in convincing a judge that they are entitled to an injunction. It could happen, but it is not likely.
But the request for the injunction will bring players and owners into the courthouse and could then lead to negotiations and a settlement. Facing the possibility of an injunction, the owners might be forced to make an offer that the players can accept. The CBA that has governed the league for 18 years was the result of courthouse conferences with the judge helping in the negotiations.
At the end of the day, just how powerful are these weapons of decertification and litigation that the players can use?
The best way to determine the answer to this question is to look back at the NHL lockout of 2004-05 that resulted in the loss of an entire season. The NHL players bargained. The owners bargained. The bargaining went on and on. The hockey players' union never decertified and never filed antitrust litigation against the owners. In other words, the players never used their most effective weapons. They endured a lockout that was about to enter its second season; finally, they crumbled and submitted to a salary cap. The lockout worked well for the owners and allowed them to achieve their objectives.
The NFLPA, as it decertifies and litigates, is trying to avoid what happened to the hockey players. Bargaining as a union in the face of a lockout is not a good situation for a union. Decertification and litigation offer a promising alternative and could easily produce an agreement.
What is the owners' next move, after the union decertifies and files litigation?
The owners will respond on two fronts. First, they will resist any attempt by the union to return to Doty's courtroom. They will ask Doty to remove himself from the litigation, claiming he is biased against them. It is almost impossible to dislodge a federal judge from a case that is assigned to the judge's courtroom. Federal law simply does not provide any avenue for removal of a judge who, like Doty, has a long history in the litigation. Still, if Doty insists on keeping the case in his courtroom, the owners will appeal his decision.
Second, the owners will pursue the complaint they filed at the National Labor Relations Board on Feb. 11 in which, anticipating both decertification and litigation, they said that the players never intended to bargain and always intended to decertify and to litigate. They will argue to the NLRB that the players' reliance on decertification and litigation is a violation of the rules that govern collective bargaining. Both of these owner maneuvers will continue into the summer and the fall before any final decision is reached.
Whew! OK, what's the best guess at what will happen next?
Within a few days, the players will try to bring the owners before Doty and ask for the injunction that will stop the lockout. It could happen within a day or two. Although that injunction will be the specific issue of the day, remember that Doty is also considering the separate case in which the players are attacking television contracts that include lockout clauses requiring the league's network partners to pay the NFL even when there are no games. They're also asking Doty for an injunction in the TV case, a court order that would prevent the networks from paying $4 billion to the NFL for games that are not played.
With both cases in his courtroom, Doty would be in a position to use his decisions as a wedge to bring the players and the owners into settlement discussions. Will he grant one or both of the injunctions? The uncertainty over his decisions is the kind of thing that frequently leads to productive settlement conferences. In subtle but unmistakable ways, Doty will try to lead the opposing sides to a settlement. It could work. But if there is no settlement, it is difficult to imagine that Doty would give the players two injunctions in a single dispute. One injunction is unusual. Two are unlikely. My guess is that he will issue the injunction that bars network payments to the league for games not played and will then encourage additional settlement discussions.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.