SBD/March 22, 2011/Leagues and Governing Bodies

NFL Lockout Watch, Day 11: League Asks Court To Keep Lockout In Place

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The NFL yesterday filed a legal memorandum asking that a federal court deny a motion filed by NFL players asking that the NFL lockout be enjoined for a number of reasons, including questions about whether the NFLPA had legally decertified as a union. The U.S. District Court in Minnesota is scheduled to hear arguments in the players’ class action antitrust suit, Tom Brady v. the NFL, on April 6 on whether the court should issue an injunction against the NFL lockout. But the NFL in its legal brief said that the court should stay this case pending a decision by the NLRB, which is currently investigating the NFL’s unfair labor practices charge it filed against the NFLPA on Feb. 14. The NFL said the lockout “is unquestionably lawful and permitted by federal labor law” and questioned whether the NFLPA legally decertified as a union. “A union cannot, by a tactical declaration akin to the flip of a switch, transform a multiemployer bargaining unit’s lawful use of economic tools afforded it under the labor laws into an antitrust violation giving rise to treble damages and injunctive relief,” the NFL said. The NFL said questions about whether the NFLPA legally renounced its status as a labor union with collective bargaining rights should be under the jurisdiction of the NLRB. “The NLRB is now considering whether the union has purported to disclaim in order to gain a tactical bargaining advantage, rather than disclaiming unequivocally and in good faith, as the federal labor laws require,” the NFL states in its brief. “If the Board finds such a violation, it will issue an order requiring the union to return to the collective bargaining table. Under the primary jurisdiction doctrine, the Court must stay this case pending the outcome of the Board proceedings.” The NLRB is currently investigating the NFL’s charge that the union did not bargain in good faith, something that the NFLPA has denied at the time the charge was first filed. It is not clear how long that investigation could take (Liz Mullen, SportsBusiness Journal).

STATE YOUR CASE: In L.A., Sam Farmer noted the NFL in essence is arguing that Congress has "barred judges from stopping lockouts as part of the Norris-La Guardia Act, which was intended to limit the ability of employers to crack down on strikes." The league contends that the "door swings both ways and that law also protects an employer's right to impose a lockout." The NFL also argues that it is "confronted with a Catch-22, saying the NFLPA is simultaneously trying to force league operations to continue, and make antitrust claims if the NFL attempts to act collectively." Furthermore, the league said that the NFLPA still is "acting like a union ... and therefore has not truly decertified" (L.A. TIMES, 3/22). The NFL's brief also argues that "both the owners and the players would be placed in 'an untenable position' if an injunction is granted and then the NLRB ruled that the union needed to reconstitute and resume bargaining." The league contends that the National Labor Relations Act "does not recognize a union's disclaimer made in bad faith or used as a 'tactical maneuver'" (NEWSDAY, 3/22). In DC, Mark Maske notes yesterday's filing to Judge Susan Nelson "raised the prospect of a lockout that could continue beyond the April 6 hearing that she has scheduled on the players’ request to end the lockout." One NFL official yesterday said that he "doesn’t expect the NLRB to complete its investigation for at least a few more weeks," adding that the "entire process, including appeals, could last a year" (WASHINGTON POST, 3/22). YAHOO SPORTS' Jason Cole wrote the brief is "convincing enough that the owners might have a real chance of maintaining the lockout and getting leverage on the players." With that in mind, the players "might want to reconsider coming back to the table for talks just in case" (SPORTS.YAHOO.com, 3/21).

LEAGUE REJECTS OFFER TO DISCUSS LAWSUIT SETTLEMENT: NFL outside counsel Gregg Levy formally responded in writing this morning to lawyers for the players suing the league, rejecting their offer of meeting to discuss settlement of the case, a source said. The league made it clear to reporters yesterday that it would only entertain collective bargaining negotiations, but the NFLPA decertified. The league contended in its brief filed with a federal court yesterday, where the players’ filed their antitrust lawsuit, that the decertification is not valid. Today’s letter was sent to the class counsel, Jeffrey Kessler and Jim Quinn, and reiterated the NFL would only meet to recommence collective bargaining. Quinn and Kessler sent the letter yesterday to Levy offering settlement discussions. The league clearly does not want to meet under the terms set by the letter because it would be a de facto recognition that there is no longer a union. The developments make it clear there is little to any chance of discussions between the two sides before the April 6 hearing in the Minnesota federal court. The players have asked the court to issue an injunction to lift the lockout imposed by the league on March 12 (Daniel Kaplan, SportsBusiness Journal). Meanwhile, Patriots President Jonathan Kraft yesterday said that he hopes Patriots QB Tom Brady "had mixed emotions about playing such a prominent role" in the lawsuit filed against the NFL. Kraft said, "On a personal level, myself and I think every member of my family, feels extremely close to Tom. I'd like to think Tom was conflicted before he made that decision, but you'd have to talk to Tom about it. He obviously feels like, I guess, that he made a business decision that was the right thing for him. I'd like to think he was conflicted in making it, but I don't know that" (ESPNBOSTON.com, 3/21).

ROSS SPEAKS OUT
: Dolphins Owner Stephen Ross yesterday said that he "dislikes the way unions often operate, whether they represent government employees, construction workers or football players." Ross: "The unions have kind of exceeded their bounds, if you know what I mean, in just about every aspect of life." He also called the players' demands "extraordinary," citing in particular their desire for a percentage of gross revenues (PALM BEACH POST, 3/22).

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