SBJ/20100913/This Weeks Issue
Union seeks authority to decertify
Published September 13, 2010
The NFL Players Association has begun handing out voting cards that would allow players to authorize the decertification of the union, a move that could prevent the NFL from locking players out when the collective-bargaining agreement expires in March.
The NFLPA plans to ask the players on all 32 clubs to vote to authorize decertification when NFLPA Executive Director DeMaurice Smith visits each club on his annual fall tour of locker rooms, sources said. New Orleans Saints players have already voted to authorize decertification at their union meeting last week, a source said.
“We have started to hand out voting cards to players authorizing us pursuant to the CBA to take action with respect to the NFLPA’s bargaining status prior to the CBA’s expiration on March 3, 2011,” states a letter sent to players and obtained by SportsBusiness Journal. “The cards will allow us to maximize the protection of your interests and rights when the CBA expires.”
If the NFLPA were to decertify, it would, in effect, operate as a trade organization but cease to be a union. If the league then tried to lock out players, the NFLPA could sue the NFL under U.S. antitrust laws and contend the league was conducting a group boycott, which is illegal. It could not sue the NFL if it remained a union with collective-bargaining authority for its members, under the labor exemption to antitrust laws.
The NFLPA’s letter reveals that union leadership continues to believe the league is poised to lock players out as soon as the CBA expires in March, and wants the option to act.
The letter says decertification “does two things for us: First, it gives a very firm deadline to the NFL to reach a new CBA with us before the current one expires, and before we end our status as a union. Second, it allows us to file an antitrust challenge against the lockout they are likely to impose the day after expiration.”
The letter does not present decertification as a fait accompli, but rather as giving the union the option to use that leverage if the need arises.
It also indicates that the union wants the option to decertify before the CBA expires. The letter states that if the NFLPA were to wait until after the CBA expires to decertify, it could not sue the NFL for six months.
If the union were to try to decertify, the league would likely sue the NFLPA, challenging the decertification as a “sham” and saying the NFLPA was still acting as a union but only filing to gain access to the antitrust laws. A source close to the league has told SportsBusiness Journal in the past that the NFL would have a strong case, because the NFLPA decertified in 1989, only to become a union again in 1993, after it won a jury trial in the Reggie White v. NFL case.
But the union has long contended that it has the right to decertify under the White settlement. That settlement was the basis for the current CBA, which was first agreed to in 1993 and has been extended several times.
NFLPA officials could not be reached for comment for this story.
Because the union has decertified before, the move cannot be considered a surprise. But Smith, although he has indicated publicly in the past that decertification was an option, has not leveled the strategy as a threat. That stands in contrast to his predecessor, the late Gene Upshaw, who, before he died in August 2008, said loudly and repeatedly that if the NFL were to try to lock players out, “We won’t be here.”
Decertification would also allow the union to legally challenge any NFL plan to unilaterally implement a new labor system. If the union won in court, the NFL could be forced to pay treble damages to the union.
Although there are advantages to the union decertifying, namely allowing it to gain access to the antitrust laws, there are disadvantages as well. Not only would the NFLPA not be able to collectively bargain for its members, it could not bring grievances for them and could not compel them to pay dues or control their marketing rights. When the union decertified in 1989, the league and the NFLPA, acting as a trade association, competed with each other for players’ marketing and licensing rights.