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Volume 20 No. 42

Labor and Agents

Liz Mullen
With the NFL lockout ongoing, this year’s NFL draft is setting up to be different in a lot of ways, including where the players who are invited to New York stay and whom they may invite to share their special day.

The NFL historically invites players who are expected to be picked at the top of the draft to New York for several days of events and picks up their travel and hotel accommodations. This year, the NFL Players Association not only is holding its own events, but it is also footing the bill for some of the invited players’ airfare and hotel costs, according to several sources who spoke on the condition of anonymity.

“The majority of them are going to stay at the NFLPA’s hotel, flying in on the NFLPA’s dime,” said one agent, who requested anonymity.

Another agent said he was not sure it was a majority; maybe more like half.

The NFLPA has announced that its draft-week events will not conflict with the draft itself. The draft is scheduled for April 28-30.

In addition, the NFLPA said that about 20 high-profile draft prospects have confirmed their attendance for the series of events being called the NFLPA Rookie Debut. The list includes quarterbacks Blaine Gabbert and Cam Newton, defensive tackle Marcell Dareus, and linebacker Von Miller.

George Atallah, NFLPA assistant executive director of external affairs, would not comment.

NFL spokesman Greg Aiello also would not comment on the issue except to say, in an email, “We have always paid the expenses of the players we invite to the draft.”

Meanwhile, the league last week sent out a memo to players invited to the draft from Deana Garner, NFL director of player security services, warning them not to jeopardize the college eligibility of their friends who are still in school.

“A current student-athlete’s attendance at any of these events, including the draft, may result in violations of NCAA legislation if the student-athlete does not pay for the benefits or services he or she receives,” wrote Garner, who worked on the NCAA’s agents, gambling and amateurism staff before joining the NFL. “PLEASE DO NOT JEOPARDIZE THE NCAA ELIGIBILITY OF YOUR FRIENDS OR FORMER TEAMMATES!” she wrote.

It is believed to be the first time the NFL has sent out such a letter to draft invitees.

The NFL’s Aiello said, via email, that the purpose was to help the prospective NFL players understand NCAA rules. “The NCAA will also follow up with each invitee’s NCAA compliance officer in an effort to be proactive,” Aiello said.

Players often have draft parties and invite friends who are still college eligible, sources close to players said. It also is not uncommon, as has been previously reported in this space, for athletes who have made it as professionals to help out their former teammates who are still in college and living on small stipends.

Still, some in the athlete community said the letter may have a chilling effect on draft invitees bringing their college-eligible friends to parties, even if those friends plan on paying their own way.

David Cornwell, an attorney who has represented athletes, including some who have been investigated by the NCAA, said the rules are unfair, noting that an engineering student could go to a party with an upperclassman who got a job and it would not affect his standing on campus.

“The NCAA needs to show how an underclassman attending a celebration of a teammate being selected to play in the National Football League in any way undermines the integrity of the game that would be played next year,” Cornwell said.

The NCAA did not make someone available for an interview nor did it answer questions about whether it was working with the NFL on this effort, or if it would be conducting investigations involving draft parties. NCAA spokeswoman Stacey Osburn, did, however, say in a statement, “NCAA rules are in place to ensure that student-athletes do not receive extra benefits due to their athletic ability, which is a core amateurism principle.”

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

While the NFL and counsel for players suing the league for antitrust violations were set to begin their third scheduled day of mediation overseen by a federal district court today, and with a judge’s decision still pending whether to lift the five-week-old lockout, the league has set its sights on the coming appeal.

Sources said last week the NFL believes Judge Susan Richard Nelson will likely decide this week for the players but that the league is confident the 8th U.S. Circuit Court of Appeals will overturn her decision. The fact that Nelson ordered the NFL into mediation when the league questions her jurisdiction, combined with some of the comments Nelson made during the April 6 oral arguments that were characterized as pro-player, has led some within the league to already look toward the next legal round.

“I don’t think the union will approach mediation seriously precisely because they view her as getting ready to issue an [injunction],” which would lift the lockout, a league source said days after the oral arguments. “They won’t compromise until after the 8th Circuit holds that [the league] was spot-on regarding the [Norris-LaGuardia Act].” That act is a Depression-era law intended to keep courts out of labor disputes, and Nelson told the league’s attorney on April 6 that she found it ironic the NFL would cite a law intended to protect striking workers.

The league’s position is that the law is not just for one side of a labor dispute. The players challenge the idea that this is a labor dispute because their union has now decertified. In addition, a player-side source did not sound as pessimistic about mediation, expressing hope that progress can be made.

Gary Roberts, dean of the Indiana University School of Law and former outside counsel to the NFL, wrote in an email, “If no settlement emerges and she rules on the injunction motion, it appears from her tone and rhetoric at the hearing (e.g., “you believe that your billionaire owners can lock out the players indefinitely?”) that she is cut from the same mold as [Judge] Earl Larson (Mackey case) and [Judge] David Doty (Powell, McNeil & White cases) before her and will side with the players. (It must be something in the water up there in Minnesota.) If so, then it will go up to the 8th Circuit Court of Appeals in St. Louis which is ... generally a much more conservative, pro-business court.”

Roberts is serving as the labor expert for NFL Network. The cases he cited are landmark cases between the NFL and players in which Minnesota judges sided with the athletes.

The NFL is correct that the 8th Circuit is more business-friendly than the Minnesota court, said John Goldman, litigation partner at Herrick, Feinstein, where he has a sub-specialty in sports litigation. The danger, he said, is that the appeal will be heard by only a three-judge panel, and what political cloth they are cut from is an unknown.

“They could miss the mark completely and get three judges who say what Judge Nelson said is in line with what Judge Doty did in the past and this is fine,” he said. “They are playing the odds, saying the predisposition of the judges likely to get the hearing on appeal will be more of a business-friendly one.”

If the three-judge panel turns down the NFL, the league could request what is called an en banc hearing, which would be a hearing before the entire 11-member 8th Circuit.

If Nelson does rule for the players this week, the league will ask her to stay the ruling. If she does not, the lockout would be lifted, and the league would then ask for the stay from the 8th Circuit.

Realizing the chaos that lifting and then reinstituting a lockout could cause, Goldman said, Nelson is likely to agree to a stay.

“She may realize that this is a case that was always going to be decided on appeal,” he said.

In the unexpected chance that the mediation she ordered bears fruit, Nelson could delay her decision to beyond this week.