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Volume 20 No. 42
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NFL goes to the history books in challenging decertification

Liz Mullen
The NFL has been arguing in the press, as well as in a legal brief it filed in federal court last week, that the NFL Players Association’s decertification as a union is “a sham.”

The NFLPA also decertified, or “disclaimed” its collective-bargaining rights, in 1989, only to re-form as a union in 1993 after it won the antitrust lawsuit it had filed against the league, in the case of Reggie White v. the NFL.
Last week the NFL, in its brief filed in the new players’ antitrust case, Tom Brady et al. v. NFL et al., noted that history and said it should be held against the union.

“With the NFLPA, past is prologue,” the NFL states in its brief, which asks U.S. District Judge Susan Nelson to deny the motion to enjoin the lockout that was filed by Brady and nine other players, who are the named plaintiffs representing all NFL players as a class. “Its purported disclaimer today does not mean that it will not collectively bargain in the future.”

Players, however, say the only reason the NFLPA became a union again is because the NFL insisted on it.
Carolina Panthers wide receiver Steve Smith, a member of the NFLPA’s board of directors, noted this in talking to reporters at the association’s recent annual meeting in Marco Island, Fla. As part of the settlement of the White case, Smith said players were “actually asked by the owners to re-form as a union so they can operate under the current rules they operate under.”

The players now, with the Brady case, filed a declaration by the late NFLPA Executive Director Gene Upshaw saying the same thing.

“The only reason I agreed to recommend that the NFLPA be converted from a trade association back into a union … is because the owners demanded that as a condition of the Settlement Agreement [of the White case],” said Upshaw in a sworn 1997 declaration.

The NFL, in its brief, called the players’ inclusion of Upshaw’s testimony in this context “both futile and improper.”

At a time when many unions are fighting to keep their collective-bargaining rights, it may be hard for the general public to understand why the NFLPA renounced those rights, but sports leagues are different than other businesses.

Gene Orza, who is retiring as the COO of the MLB Players Association at the end of this month, notes that there is a labor antitrust exemption that allows sports leagues to impose restrictions such as the draft and the salary cap. That exemption, Orza says, “flows from the union” and “it can bestow on the employer its immunity from the antitrust laws.”

The NFLPA decertified to gain access to those laws.

Orza said he, like many labor lawyers, is following the Brady case. “I think the NFL’s position is fanciful,” Orza said. “A union has the right to go out of business.”

Other attorneys are not so sure. “It’s a masterful job of lawyering,” said Bill Gould, former chairman of the National Labor Relations Board and a current Stanford Law School professor, noting the NFL’s brief, but he added that both sides have done “a masterful job.”

Gould said that the court may grapple with a number of legal issues and that he is not sure how it will come down, but he said that the way the court interprets provisions in the expired CBA having to do with the union decertifying could be a major factor in Nelson’s decision.

Several attorneys who have read the CBA have said that the relevant language could be interpreted in different ways.

“Decertification is the only weapon [the players] have, and restoration of the union is absolutely necessary for the owners,” Gould said. “It’s a role reversal. Usually employers are trying to get rid of unions. In this case, they have to have the union.”

VISION SPORTS SIGNS PHILLIPS: Vision Sports Group of New York, an agency that specializes in representing sports broadcasters, has signed Steve Phillips, the former ESPN broadcaster and, before that, general manager of the New York Mets. Phillips hosts the morning show on SiriusXM’s Mad Dog channel.

Liz Mullen can be reached at Follow her on Twitter @SBJLizMullen.