SBJ/May 23-29, 2011/Leagues and Governing Bodies

Lockout not deterring NFL’s 2011 kickoff plans

The NFL is planning an expansive marketing and promotional initiative for its 2011 kickoff game and opening weekend contests that fall on the 10-year anniversary of 9/11, sources said, despite signs that the ongoing lockout threatens the start of the regular season.

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The NFL deployed a $50M campaign that led up to last year’s opening game in New Orleans.
The league is scheduled to brief owners on the plans Tuesday at the spring meeting in Indianapolis.

The NFL last week scored a significant legal victory that kept the lockout in place, with language in the ruling signaling a lower court’s decision, which momentarily lifted the work stoppage, could be fully overturned. But the players show no signs of backing down in the face of, for them, their unexpected and rare loss in federal court.

NFL Players Association Executive Director DeMaurice Smith, who is also acting as counsel to the 10 players suing the NFL for antitrust violations, told reporters the players are prepared for the long term.

According to legal experts, even though the players’ lawyers previously assured them the lockout could not stand because the union had decertified, the stakes are even higher now to not fold in order to keep in place the threat of current and future antitrust action.

“The only reason the players in the NFL have had any improvement in wages is because of the threat of antitrust law, and if they were to give up that position or weaken it significantly — that they could sue under antitrust law if the NFL is being unreasonable — they will have no leverage,” said Mark Levinstein, a Williams & Connolly attorney who represents players.

The 8th U.S. Circuit Court of Appeals ruling does not mean that players can’t still proceed with their core antitrust charges against the league: that the lockout and free agency rules violate antitrust laws. The 8th Circuit, which stayed a lower-court ruling enjoining the lockout and strongly suggested it would fully overturn the decision, did not rule on these other issues. For the players to fold now could signal they are unwilling to pursue antitrust action if they are threatened with lost paychecks, which are due when the season starts.

“This is the end of the beginning,” said Marc Ganis, a sports consultant with close ties to the NFL, underscoring that the NFL’s much-needed legal victory by no means brought the end in sight.

Levinstein also raised another hurdle for anyone hoping for a quick resolution: Even if some players were to turn against their leadership, there is no structural mechanism in place, at the moment, for them to be heard. Unlike the 1987 strike, the last work stoppage in the NFL, when an individual player could simply cross the picket line, in this case, the union has decertified and the 10 players suing the league are the only ones with formal legal representation.

“All this speculation about how the players will fold is based on 1987 and is misguided,” he said.

The NFL, which declined to comment, is preparing nonetheless for a major promotional rollout for the start of the season. Last year, the league deployed a $50 million campaign starting around training camp to pump up the new season.

This year, there is heightened sensitivity because the opening Sunday games fall on the 10th anniversary of 9/11, a development that has led many to call on the league to ensure games are played on that day.

The sources declined to divulge details of the rollout other than that the effort would be sizable and involve a variety of communication mediums.

Owners at the meetings this week also will get a briefing from the league office on how teams are handling customer relations during the lockout, which began March 12. The league’s club services group is set to present on the practices clubs are employing to assuage tickets holders, fans, sponsors and others over the work stoppage. It is uncertain if the league will provide figures on what, if any, business has been lost to date.

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