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SBD/March 29, 2011/Leagues and Governing BodiesPrint All
The players suing the NFL for antitrust violations as expected claimed yesterday each of the league’s legal claims to keep the lockout in effect had already been rejected by the courts. Calling the NFL “antitrust recidivists,” the players in their reply brief called the league’s arguments that the players could not renounce their union membership absurd and rejected by court after court. The players renouncing union membership is critical for them to be able to sue the league for antitrust violations. “There are no ‘magic steps’ that a union must follow to abandon collective bargaining representation,” the brief said. “All that is required is a disclaimer of such status.” The reply also publicly disclosed for the first time that the players had for a second time, following the decertification on March 11, affirmed the decertification. They had given approval to the NFLPA in the fall to do so if necessary. And the players also made it clear that while by disbanding they won the right to sue under antitrust grounds, they were also giving up a lot. “By deunionizing, the Players gave up their labor law rights, including striking, collectively bargaining, regulating agents, and having union representation in grievances and benefit determinations.” The players also blasted the league’s argument that the lockout could not be lifted because the players are suing the NFL for antitrust violations, putting the league in a catch-22 scenario. The solution is merely to implement a system that does not restrict the players’ service market, the reply said. “There is, however, no reason why Defendants cannot devise a lawful player system.” The players also said they would face irreparable harm if the lockout is not lifted because players use the offseason to compete for spots on clubs. The NFL argued that there was no irreparable harm to the players. To grant an injunction, a court must find irreparable harm.
WAITING ON NLRB "IMPLAUSIBLE": The players also contended that the league’s argument that the court should defer to the National Labor Relations Board until it decides on an unfair bargaining charge brought by the league was implausible. There is no NLRB process until the agency moves on a charge, the players explained, so the NFL is asking the court not to take jurisdiction over something that may not materialize. The Minnesota federal court has a hearing next Wednesday to hear arguments on whether to issue an injunction to lift the lockout (Daniel Kaplan, SportsBusiness Journal). In Boston, Greg Bedard notes one of the "major contentions of the players is that the settlement agreement in the prior work stoppage of 1987 gave them the right to decertify because the NFL insisted the NFLPA reconstitute to formulate a new" CBA. In return, the players "were given the right to pick up where they left off as a trade association if the CBA ended." The players also "made the argument that employers 'cannot force employees to remain a union,' and the NFL's insistence that changing the status of the union is the equivalent to 'flicking a switch' is not valid because the players surrender labor law rights when they decertify" (BOSTON GLOBE, 3/29).
FULL NELSON: In DC, Amy Shipley writes U.S. District Judge Susan Nelson "wields substantial power over the fate of the nation's most popular sport ... as an April 6 hearing in her St. Paul courtroom approaches," with her first ruling "likely to determine how soon players get back on the field and under what conditions." The players "will score a major victory if Nelson grants their request for a preliminary injunction to lift the lockout," as they "could return to work while the owners, who would almost surely appeal, would confront the possibility of more grim anti-trust rulings from her." The owners' position, meantime, "would be strengthened by an extended lockout, which could destroy players' morale as their wallets grow lighter." The lockout "would remain in place if Nelson decides in favor of the owners or abides by" the NFL's request to defer to the NLRB. Nelson's background "suggests she might press for settlement talks sooner than later, but it offers little hint about which side she might favor in the short term." Colleagues and attorneys said that Nelson's "ability to broker deals is surpassed only by her reputation for even-handedness in the court room." Her credentials "might partly explain why NFL players did not request the case be moved from Nelson's bench to that of David S. Doty, another judge in the same district who oversaw the NFL's last collective bargaining agreement -- and whom the NFL accused in filings last year of favoring the players in NFL disputes" (WASHINGTON POST, 3/29). Former U.S. attorney Thomas Heffelfinger suggested that Nelson "will thoroughly examine the facts and arguments before rendering a fair and informed decision." Heffelfinger: "There's no doubt she's in control of the courtroom. She has a reputation of being open to arguments and being very decisive. She's had enough big matters before her that the size (of the NFL case) won't put her off" (USA TODAY, 3/29).
THIS IS JUST A TEST: USA TODAY's Jarrett Bell writes the NFL "could face a tough skirmish with players over its HGH testing plan." HGH "has been on the banned substance list since the late 1980s, but it hasn't been tested for because there has never been a reliable urine test." NFL VP/Law & Labor Policy Adolpho Birch said that a "better process for analysis, collection and storage is one reason the NFL is pushing more aggressively on the HGH front." Birch: "If we don't have one positive (HGH) test in eight years, it would still be worth it to conduct this test" (USA TODAY, 3/29). FOXSPORTS.com's Alex Marvez wrote a "spike in recreational and performance-enhancing drug use isn't Adolpho Birch's biggest concern," as he is "more worried about those players who were receiving treatment and counseling under league auspices." Those programs are "no longer mandatory" without a CBA. Because those in the NFL's drug program are "protected by confidentiality," Birch said that he is "unaware how many players were receiving treatment before the lockout." He "believes that most players will continue to shun drug use even without the threat of random testing" during the lockout (FOXSPORTS.com, 3/28).
Adams is confident that NFL will
play its '11 season
RESPECT, JUST A LITTLE BIT: Free agent RB Fred Taylor, when asked if owners respect players, said, "There are some very good owners out there. There are some very good businessmen out there. It's a give and a take. ... For the most part, it's a good relationship between owners and players. Right now they're using their leverage as businessmen. That's what it's really all about. I don't think they ever really wanted us to drop our percentage down (that far). I think that was moreso a leverage ploy, a strategic move by the owners. ... In all fairness to the owners, they're just trying to handle business. They're businessmen" (JACKSONVILLE.com, 3/28).
SMALL VICTORY: In Ft. Lauderdale, Omar Kelly reported NFL players Friday "received a victory when NFL teams, owners were ordered to stop unlawful attempts to reduce workers compensation benefits" to injured players. U.S. District Judge Paul Crotty "issued an injunction requiring all NFL teams and owners to stop seeking to reduce the worker compensation benefits due to former NFL players as a result of injuries they suffered while playing the game." Kelly wrote, "Of course it's a small victory that won't get us closer to ending this lockout, but considering player safety and long term treatment is the only issue I'm personally advocating for it's an important one" (SUN-SENTINEL.com, 3/28).
A group of retired players sued the NFL for antitrust violations yesterday, asking their case be joined with the one filed by active players and that the court stop next month's NFL Draft. The group, led by Carl Eller, charged, "The admitted purpose of this group boycott (lockout) is to coerce Plaintiffs and the other players to agree to a new anticompetitive system of players restraints that will, inter alia, drastically reduce prospective player compensation levels and benefit levels for retired or former players." The suit, filed in the same Minnesota federal court hearing the active players' antitrust lawsuit, seeks to represent the incoming rookies as well. Other members of the class include Priest Holmes, Obafemi Ayanbadejo and Ryan Collins (Daniel Kaplan, SportsBusiness Journal). YAHOO SPORTS' Dan Wetzel reported Eller v. NFL is "similar to the current Brady, et al v. NFL," though it is "based on a potentially clever legal maneuver that could box the league into a corner and prove a significant development in ending pro football’s nearly month-long labor impasse." The former players' suit also "covers draft-eligible prospects," who are not represented by the NFLPA under the previous CBA. As such, these plaintiffs "could potentially avoid one of the league's chief counterarguments against the Brady lawsuit -- that the union illegally decertified" (SPORTS.YAHOO.com, 3/28). Michael Hausfeld, the lead attorney on the lawsuit, said that the claim "argues that draft-eligible players who will not be drafted for another month are subject to antitrust violations by clubs because once they are drafted, they will immediately be locked out and will later be subject to a system with a salary cap, and limits on free agency." Hausfeld said of incoming, current and former players, "Given the fact the union decertified, there are three separate interests now. The first and third of those interests want to have their own voice, because they are not covered by the defense raised by owners." Hausfeld said that he "would file papers Tuesday seeking the injunction to block the lockout, but the lawsuit he has filed seeks no damages" (Judy Battista, N.Y. TIMES, 3/29).
The NFLPA has decided "not to have any events that conflict with the NFL Draft," according to ESPN's Adam Schefter. There will be a "wide-range of activities over the three days" for the draftees beginning April 28, and the NFLPA will "wrap-up their week-long events on Saturday night with a reception at 7:00pm Eastern." It is "conceivable that some of these players will not be around for the activities on Friday and/or Saturday." After players are drafted, "there is a window in time that they can go visit the team that drafted them" despite the lockout barring any contact between teams and players. Schefter: "There's enough other conflict between the two sides. Here's three days they've managed to put aside their conflicts" ("SportsCenter," ESPN, 3/28). The decision to attend the Draft "will be left in the hands of each player, as it always is each year." Schefter was unsure whether there was any "pushback" from the players, but he said, "A lot of people have had a lot of different ideas, some very strong opinions on each side of the fence here. I think ultimately the NFLPA is looking at what makes the most sense for them in this situation, the way it is right now" ("NFL Live," ESPN, 3/28).
SHOULD I STAY OR SHOULD I GO? In Philadelphia, Paul Domowitch reports NFLPA officials "insist they have not told the prospects or their agents not to go" to the NFL Draft, but they "also haven't urged them to go have a good time, either." The officials are "doing that let-your-conscience-be-your-guide thing." NFLPA Assistant Exec Dir for External Affairs George Atallah following a sports law panel discussion last night at Rutgers Univ.-Camden said, "We're not saying to them not to go (to the draft). We've never said that. We're not saying that. We were just encouraging them to understand the business situation they were in." Ravens CB and NFLPA Exec Committee member Domonique Foxworth during the panel discussion "indicated he would never try to persuade a young player lucky enough to be invited to New York for the draft not to go." However, he was "much more reluctant to offer his opinion on whether the players should attend the draft" when speaking with reporters after the panel. Foxworth: "I just don't want my statement to skew the decision of any young guys. So I would rather not say" (PHILADELPHIA DAILY NEWS, 3/29).
GOOD DECISION BY THE NFLPA: ESPN's Trent Dilfer said, "This is a really wise move by the NFLPA not to compete with the Draft coverage Thursday night. I think it also would be wise for the PA to not put pressure on the young rookies to not go to the Draft." Dilfer: "The NFLPA really has to understand the difference between leveraging these young players to make a statement, or robbing them of a really unique experience." ESPN's Suzy Kolber noted it seems "overwhelming to players that we have spoken to that they want to be there." ESPN's Mark Schlereth said the potential Draft boycott was a "tit-for-tat thing, and I just didn't like it from the start." However, he said, "I would love to see the indelible mark put on this Draft if a kid walks out in a T-shirt that says, 'Let Me Play. I'm Locked Out. Let Me Play.' I would love to see that because that's a lasting thing that will be carried not only on our network, but every news network and every news outlet. That makes a statement" ("NFL Live," ESPN, 3/28). CBSSPORTS.com's Pete Prisco said of the potential Draft boycott, "It was a stupid idea anyway. ... In the end, cooler heads prevailed" (CBSSPORTS.com, 3/28).
Seahawks QB Matt Hasselbeck, who was slated to be an unrestricted free agent after the past season, was one of about 100 elected NFL team reps who gathered in Marco Island, Fla., starting March 17 for the NFLPA's annual meeting. For the last two decades, the NFLPA had held its annual meeting in Hawaii. The move to the mainland -- intended to cut costs and attract more players -- made this year’s meeting unique in its geography, but notably, it also was the first meeting since the NFLPA decertified as a union and began operating as a trade association. Team player reps, now known as directors of the players board, were briefed at the meeting by members of the association’s Exec Committee who had attended the federal mediation sessions in DC that were intended to bring about a new CBA but ultimately failed to do so. Hasselbeck sat down with SportsBusiness Journal staff writer Liz Mullen to talk about what he learned at the meeting and what might happen to the association going forward.
Q: What happened in the CBA talks? What is the bottom line?
Hasselbeck: I don’t know if I had a bottom line, but there are some things that are clear. We tried our very hardest to get a deal done. You can’t get a deal done if there is no one there to get a deal done with. I can’t buy a car if the guy who can sell me the car isn’t at the dealership.
Q: I understand that the players’ position is that you want your class counsel in the Brady v. NFL case to have discussions to settle the lawsuit and that those talks could result, ultimately, in a deal getting done. Is that right?
Hasselbeck: We are totally open to settlement discussions. No doubt. Absolutely. That has been talked about every single day here. ... If they want to have serious settlement discussions with people that can agree to a settlement, sure, let’s do it. But to have “pretend” talks is a waste of everybody’s time.
Q: Where were you on the last day of the federally mediated settlement talks? Did you get on the conference call the NFLPA had before it decertified? Did you think there was any chance of an extension or were you resigned that the NFLPA was going to decertify and the NFL was going to lock out?
Hasselbeck: No, no. I fully expected to get a deal. I called into that last conference call. I was at a charity event in California and stopped everything to get on this conference call.
Q: What was the mood on the conference call?
Hasselbeck: There was a little bit of anger and frustration, like, "Why don’t we have a deal?" The players that were there [at the mediation] ... were like, “Guys, they won’t open their books.” All we have asked for is show us financials.
Q: Was that the big issue on the conference call that day?
Hasselbeck: My take away from the call was, “If you need another extension, we need the financials,” and that is what we essentially voted on. We said, “Listen, if they basically blow us off again ... we are wasting our time. They are messing with us. We have been asking for two years. Another 24 hours isn’t going to change anything.”
Q: Why were you hopeful?
Hasselbeck: I was hopeful that we would come to an agreement, either to extend or maybe the owners show up and you get like a John Mara or a Rooney or ... someone who can help get a deal done. And they are like, “Guys, we got a good thing going here. Let’s work it out,” and they work it out.
Q: Some of the players have expressed anger at the letter Commissioner Roger Goodell sent to all players explaining what the league offered to players and urging your “union” to start up negotiations. How do players feel about that?
Hasselbeck: Are the guys angry about that? Oh, I mean, the guys that were in DC thought that letter was the biggest joke. The guys that were there. ... And you know, I know Roger; he’s a good guy. I like Roger; he’s a good person. But you hear his side of the story and you are like … ? (shrugs)
Q: What do you think about the owners changing their proposal on the last day?
Hasselbeck: It’s classic technique. It’s similar if you are a quarterback: You are sitting there under center, and the safeties start disguising coverages. They start trying to mess with you. Maybe a rookie quarterback would be like, “Oh no, the safety’s coming down.” But if you know what’s up, like if you know why they are doing it, you’re like, “Whatever.”
Q: That’s how you view the negotiations and what’s been going on?
Hasselbeck: Well, not the negotiations. See, it doesn’t matter. It matters where that safety is at the snap of the ball. Where are you really going to be? What is the truth? I am not upset about it. We will come to an agreement. We will come to a settlement agreement or we will come to an agreement and we will be back in this together.