SBJ/October 31-November 6, 2011/Labor and Agents

Pleas to NLRB for fast decision went unheeded

As the National Basketball Players Association looks for a decision from the National Labor Relations Board on the union’s charge that NBA owners have not negotiated fairly, NFL owners may have some words of caution: Be prepared to wait.

The NBA players filed their case in May. They ultimately are seeking to receive an injunction in federal court to end the now four-month-long lockout.

The NFL, however, practically begged the NLRB not only to make a quick decision on a charge it filed early this year that the NFL Players Association had not been negotiating fairly in their labor talks, but also to intervene in the court case filed by players against the league, according to letters sent by league outside counsel to the NLRB and obtained by SportsBusiness Journal under a Freedom of Information Act request.

And it wasn’t just the NFL asking for a speedy resolution. The NFLPA, in a position paper sent to the NLRB — also obtained under a FOIA request — also asked the federal agency to make a quick decision. The NLRB regional office initially overseeing the NFL’s charge did, in May, make a recommendation to the agency’s advice bureau, according to the documents, but no further move was made, and the players and league settled in early August without the NLRB having issued a final ruling.

The NLRB declined to publicize the recommendation or comment further, contending that the recommendation constitutes internal deliberations that are exempt from FOIA guidelines.

“The NFL respectfully urges the General Counsel to assert the Board’s primary jurisdiction and to seek a stay of the recently filed Brady v NFL antitrust case,” NFL outside counsel Bob Batterman wrote on March 17 to NLRB acting general counsel Lafe Solomon. “We are hopeful that a complaint will issue in advance of the April 6 preliminary injunction hearing.”

The NLRB took no such action.

Batterman wrote to Solomon again on April 27, asking the NLRB to intervene in the NFL’s appeal of a U.S. District Court ruling against the league two days earlier and to issue a complaint against the NFLPA as soon as possible.

“The NFL respectfully submits that it is now urgent that a complaint issue,” Batterman wrote.

Later, in a May 20 letter to the associate general counsel of the NLRB division of advice, Barry Kearney, Batterman again asked for the NLRB to act — which it did not.

That letter is apparently the last correspondence the NFL sent to the NLRB seeking quick movement on its charge, which was originally filed Feb. 14. Several days after that May 20 letter was sent, the first of a series of “secret” talks between players and owners began — talks that ultimately resolved the labor dispute.

There are significant differences between the NFL’s charge and the NBPA’s charge. The NFL’s core contention was that the NFLPA had not been engaged in good-faith negotiations and that it, instead, had designs on decertification and filing an antitrust lawsuit against the league. In the case of the NBPA, the union’s charge contends that the NBA has dealt directly with players and has bypassed the union, and that it has refused to provide financial information requested by the union to understand its financial demands.

Bill Gould, former chairman of the NLRB and now a Stanford Law School professor, said there are several reasons why Solomon may have held off in the NFL dispute.

“The general counsel is careful, and the board would do the same, about moving ahead if they thought their action would somehow disrupt bargaining that otherwise might be successful,” Gould said. “If he was inclined to issue a complaint, he may have felt he would have muddied the waters, or it may be he just wasn’t inclined.”

In the NBA situation, Gould said, “If the general counsel really believes they are deadlocked and it is unlikely that is going to be altered in the forseeable future, he could intervene.”

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