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Volume 21 No. 1
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Lawyers expected to spar over antitrust precedents

The NFL’s legal contentions to keep the now 2 1/2-week lockout in place have been rejected in the past by courts, the players suing the NFL for antitrust violation and seeking to return to work will argue today in a brief to be filed in Minnesota federal court, a source said last week.

The NFL and its high-powered legal team, led by David Boies and former Solicitor General Paul Clement, forcefully argued last week to the court in their own brief that a Depression-era law disallows federal courts from getting involved in labor disputes. Were they to win on that argument, the lockout would stay and potentially shift significant leverage to the owners in the labor battle, which threatens the 2011 NFL season.

The players’ class counsel declined to comment for this story, but what it is almost certain to argue in its reply brief, according to an attorney, is that the law in question, the Norris-LaGuardia Act, applies only to striking workers. The law, this attorney said, specifically prevents courts from granting employers injunctions seeking to return strikers to work, but the NFL is arguing it should apply to all labor disputes and prevent the players’ request for an injunction to lift the lockout.

“In prior cases, the Supreme Court has addressed Norris as a one-way exemption that protects the unions; it doesn’t protect employers,” said Steve Bradbury, who represented practice squad players in the 1996 Supreme Court case Brown v. NFL. In 1957, he said, the NFL tried to make the same argument in Radovich v. NFL, but the Supreme Court ruled the league could not use Norris-LaGuardia to keep a dispute over the reserve clause out of federal court.

An NFL official disagreed, saying that there is 40 years of case law to support the league’s position and that Radovich involved the scope of the antitrust laws, not an injunction.

The players also are expected to argue they would face irreparable damages from being locked out. To get an injunction, the players must prove irreparable damages, which is non-economic harm that cannot be recovered.

The league and others have questioned exactly what the players’ harm is. Indeed, in his declaration supporting the NFL’s brief last week, Peter Ruocco, league senior vice president of labor relations, declared, “I understand that plaintiffs allege that they will suffer irreparable harm if they are not permitted to work out with their teammates at club facilities during the off-season. But last season plaintiffs [Logan] Mankins and [Vincent] Jackson did not participate in any organized team activities during the off-season, indeed each refused to report to his club until well after the regular season had begun.”

Mankins and Jackson both sat out a portion of the 2010 season in protest of their respective contracts with New England and San Diego.

The NFL is also contending that the court should wait until the National Labor Relations Board decides whether the NFL Players Association decertification is valid. If the group is not allowed to disband as a union, the players could not sue the league for antitrust claims.

Seth Borden, a management labor attorney with McKenna Long & Aldridge, said this is the most important argument the league made. Because the NFLPA decertified and reconstituted once before, the NLRB may have questions about how sincere the decertification is, Borden said.

“When you look at the conduct in its entirety, the fact you have the same people still calling the shots, the same people with hands on the wheel in term of strategy,” the NLRB should take a look at it, Borden predicted. Jeffrey Kessler is both the class counsel and outside counsel to the NFLPA, and two of the named plaintiffs, Drew Brees and Mike Vrabel, were executive committee members of the union.

The players, however, may argue that they cannot be compelled to have a union and that when they reconstituted previously, in 1993, it was because the NFL made it a condition of signing a new labor deal.

It’s unclear what argument the players will offer to counter the NFL’s position that there is an inconsistency in the NFLPA case because if the lockout is lifted, the league would then be forced to use the old rules the players are now charging are violations of antitrust law. The players might simply argue the league should strip away the objectionable aspects of the system, like transition and franchise tags and compensation restraints.

Ruocco in his declaration suggested that would be the players’ argument, but he retorted that if the league were to do that, the NFL would suffer greatly.

“If the court were to issue an injunction prohibiting the NFL from … lock[ing] out the players, the players would undoubtedly argue that the free agency period for the 2011 season should begin promptly,” his declaration states. “There are hundreds of players with contracts that will have expired when the 2011 league year begins; we would expect the NFLPA and players to take the position that all of those players would be free agents, immediately eligible to sign player contracts with any club.

“That would mean, players that teams normally could have put tags on would no longer be bound to their clubs.

“In such circumstances it is only logical that the more favorably situated clubs would be able to sign more and better free agents than less well situated clubs,” Ruocco declared. “[T]his would have a detrimental effect on competitive balance … and would cause irreparable harm to the clubs that lost free agents or the right to bid for free agents on a level playing field.”