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SBJ/February 28 - March 6, 2011/Labor and Agents
NFL wants to keep players off field if union decertifies
Sources: 1989 standoff shapes league strategy as deadline nears
Published February 28, 2011, Page 1
Conventional wisdom within football circles is if the union disbands in order to file an antitrust lawsuit, the league would impose work rules and play the coming season, similar to the sequence of events that unfolded in 1989. That year started a stormy and litigious four-year phase between the league and players that culminated with the current CBA, struck in 1993. But no games were lost between 1989 and 1993 because, while there was no union, the teams still signed the players.
Several key sources said the NFL believes allowing the players on the field would essentially fund a new antitrust lawsuit because it would take away the league's main leverage point: depriving the players of game checks. As a result, the league might not lift a possible lockout just because the union walked away, making it a condition of the players returning that they drop the lawsuit.
SportsBusiness Journal is using the term "decertification" in stories to describe the act of the NFL Players Association disbanding, as have most other publications covering the labor negotiations. Technically, however, what the union did in 1989, and may do so again, is what in labor parlance is called "disclaiming interest," or "a disclaimer."
"The union leadership is in control of disclaimer; employees are in charge of decertification," said Seth Borden, partner in the employment and labor law practice at McKenna Long & Aldridge.
When a union disclaims, Borden said, its executives essentially walk away from their leadership roles. In a decertification, the members vote to disband.
While NFLPA members were reported to have voted for decertification in the fall, it's unclear if that was simply a vote to approve of disclaimer, if necessary.
A true decertification requires the union filing a petition at the National Labor Relations Board, which would then conduct its own vote of members. In other words, a disclaimer is an easier path to disband.
If successful, either disclaimer or decertification would get the NFLPA to the point of being able to file an antitrust lawsuit. But the union, sources said, plans to disclaim if events reach the point where it decides to disband.
Because labor lawyers say that even they often use the two terms interchangeably, for easier reading and to avoid confusion, SportsBusiness Journal is using the term decertification to describe the possible disbandment of the union.
The players would then almost certainly ask a federal court to force the league to let them play, a league source said.
Whether this is an academic exercise or a description of events to begin unfolding later this week is uncertain. The union and league last week engaged in lengthy negotiations overseen by a federal mediator and were scheduled to meet again on Tuesday. The mediator noted in a statement last Thursday that progress had been made but there were still large differences between the sides.
The NFL declined to comment on what it termed contingency plans. The NFLPA, like the NFL, was not commenting on all matters related to the CBA because the mediator had asked the sides not to talk publicly.
But if the sides move past Thursday without a deal, or if the deadline is not extended, the sources said the NFL is intent on not repeating what it sees as its mistake in 1989: allowing the players to compete while they sued the league.
It would be uncharted territory if the union were to disband and the NFL does not let the players on the field, said Gary Roberts, a former league outside counsel.
"If the union decertifies, it is not really correct to call it a 'lockout,'" he said. "As soon as you don't have a union, it's an employer ceasing operations."
Bill Gould, a Stanford University law professor and former chairman of the National Labor Relations Board, said a court would likely side with the players and allow them back on the field.
"I think it would be a violation of the antitrust law to lock players out if, in fact, there is no union," he said.
First, the NFLPA needs to disband, and the timing is important. While the NFL cannot lock out until the CBA expires, labor lawyers expect the NFLPA to decertify before that time. That's because the expiring CBA is worded such that players need to disband before Thursday midnight, the expiration moment, or it would have to wait six months to file the antitrust lawsuit.
The NFLPA would disband for the same reason it did in 1989: Unions cannot sue an employer for antitrust violations. The NFLPA's decertification 22 years ago was viewed then as a radical and risky maneuver, but it paid off when the antitrust lawsuits resulted in a settlement with the league tied to a new CBA. That pact gave the players free agency and the owners a salary cap.
The league, meanwhile, is already challenging the players' potential decertification. On Feb. 14, it filed a charge with the NLRB on the matter, arguing that decertification is a way to avoid serious bargaining, a charge the union denied.
Lawyers describe that filing as the first step in the league's effort to halt decertification, which could be followed by lawsuits. It's unclear if the union's agreement to the intensive series of negotiations overseen by the federal mediator undercuts the NFL charge that the union has been engaged in surface bargaining designed to simply reach decertification.
Because the NFLPA decertified once, only to reform as a union, Roberts predicted the NFL would surely emphasize the union move is not a sincere gesture to disband. "The NFL will no doubt argue that it is not a decertification and that no one on the planet will believe the union is going away," he said.
The league could ask the NLRB to go to a federal court to file an injunction stopping the disbandment as a ploy because the union likely intends to re-form as it did in 1993.
"At the end of the day, can you really require a union to perform its functions?" asked Josh Zuckerberg, a labor lawyer with Pryor Cashman, which advises unions and management. "I don't think the board can compel them."
The union last fall won the blessing of its members to decertify. Decertified, the NFLPA could not collectively bargain for players or file grievances on their behalf and instead would operate as a trade association. NFLPA Executive Director DeMaurice Smith would run the group, and other employees are expected to retain their jobs in that circumstance.
Some NFL sources, however, said that the league might not be willing to deal with Smith at that point on any issue. If he no longer runs a union, said these sources describing the league's thinking, and if an antitrust lawsuit is filed, the NFL could insist on talking only with the class counsel, likely Jeffrey Kessler, the union's outside counsel.
In 1989, the league unsuccessfully challenged the NFLPA's decertification. After the NFLPA declared it disbanded, the league contacted the union on several occasions to bargain proposed changes to working conditions, according to an NLRB case. The union's then-executive director, the late Gene Upshaw, replied in writing that the organization was no longer engaged in collective bargaining. The NLRB, in a case brought by some players at the time, found the NFLPA was a trade organization.