SBD/March 29, 2011/Leagues and Governing Bodies

NFL Lockout Watch, Day 18: Players Defend Legal Right To Decertify Union In Filings

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
GIVE 'EM SOMETHING TO TALK ABOUT
: In Nashville, John Glennon reports NFL Commissioner Roger Goodell last night "reiterated that he would prefer to work out a settlement through negotiation rather than through litigation." Goodell: "We've said we're prepared to negotiate. We did not pull away from the negotiating table. The union did, to pursue a litigation strategy. We're prepared to negotiate tomorrow." But Goodell said that he "has had no recent conversations" with NFLPA Exec Dir DeMaurice Smith (Nashville TENNESSEAN, 3/29). Meanwhile, Titans Owner Bud Adams is "predicting the NFL will play the 2011 season, even if it takes a few months to work out a new labor deal." Adams last night said, "It's going to be a few months here, but we'll be playing this year. I guarantee we'll be playing." He added, "It's one of those things that they haven't been very (much) wanting to work out a deal with us, but we'll be playing football this year. I'll tell you that for sure" (AP, 3/28).

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).
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