SBJ/June 13-19, 2011/Labor and Agents

Does rhetoric shift mean hope for NFL talks?

Shortly before oral arguments June 3 in St. Louis federal appeals court over whether to end the NFL lockout, NFL Players Association Executive Director DeMaurice Smith strode into the spacious courtroom. He walked by packed rows of seats before he stopped behind two NFL in-house lawyers, Dennis Curran and Ed Tighe, patted them on their backs, and, as they turned, shook their hands.

That seemingly simple display of courtesy between rivals spoke to a much greater development: The NFL and players are showing signs of civility and appear ready to get down to the business of saving the season.

Smith, unlike his predecessor, the late Gene Upshaw, has prided himself on not being cozy with owners and league executives. His often-strong rhetoric has inflamed tempers within the league. Asked at the Super Bowl which owners he knew, Smith, who assumed his post in March 2009, replied that his job was to represent the players (see related story).

But with recent not-so-secret meetings occurring far from Minnesota federal court, the players’ preferred venue, and with no counsel present other than Smith himself, insiders late last week seemed downright giddy that a new labor deal is now possible.

After the hearing in St. Louis, Smith, who just weeks earlier publicly blasted the NFL for the lockout, barely stopped on the steamy courthouse steps for questions on the sudden resumption of face-to-face talks, respecting the confidentiality of the process.

“Anything which has conversations going is better than no conversations,” said one NFL source. “Any deal in any league takes weeks and weeks to reach. Is it possible before preseason games must be canceled? Possible, but very tough.”

Still, that is a far cry from losing regular-season games, if not the whole 2011 season.

Commissioner Roger Goodell, questioned the day of the hearing and just after the first round of the “secret” meetings, said both sides appeared committed to getting a deal done. While again a seemingly simple and courteous response, it’s a significant change from prior league comments. For months before the union decertified on March 11 and the players filed an antitrust lawsuit against the NFL, the league strongly suggested the NFLPA was not committed to bargaining, a charge the then-union denied. Just three weeks ago, Green Bay Packers President Mark Murphy, a key negotiator for the league, said about the two earlier rounds of mediated talks in Minnesota federal court, “The players have not negotiated since they decertified.”

To be sure, the momentum could turn on a dime, but a significant factor is driving both sides: What will the St. Louis-based 8th U.S. Circuit Court of Appeals rule?

It seems preordained that the judges will allow the lockout to stand, a position that likely motivates the players to get a deal done now, before any binding decision from the court that could restrict their decertification options. The judges in their May 16 stay decision argued that they thought a lower court erred in enjoining the lockout, and their questioning on June 3 of the players’ lawyer, Ted Olson, echoed that earlier ruling.

But for the league, there are potential pitfalls, as well. Could the court limit the length of the lockout? Or, might the court rule that the league’s exposure to the U.S. antitrust rules begins six months after the union’s March 11 decertification, leaving the NFL vulnerable to treble damages?

Judge Duane Benton sparred with NFL lawyer Paul Clement over when the players should be allowed to seek antitrust protections. The players have argued that the league’s labor exemption from antitrust should have ceased instantaneously on March 11, when the union decertified. The league, through Clement, argued for the first time that the protection should exist until at least March 2012.

Benton suggested six months. Dating from March 11, the resulting Sept. 11 date would fall on what would be the first Sunday of the regular season. That means while the judges could allow the lockout to continue, after six months, if the work stoppage is ruled an antitrust violation, the league could face steep damages.

Judge Kermit Bye, who dissented in the 2-1 stay decision, warned both sides at the close of the 69-minute hearing that neither might like the outcome of a ruling. Some NFL insiders viewed that simply as Bye trying to balance the leverage that has tilted toward the owners since the stay decision. He argued in his stay dissent that the players are suffering irreparable damages now. Perhaps, this theory went, knowing that he was outvoted, he was trying to scare the NFL into a deal.

But beyond the legal tea-leaf reading, each side is now staring at the reality of lost games and paychecks just months away. Perhaps more than any suggestive judicial comments, that could be enough to get the parties to the negotiating table.
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