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Volume 20 No. 46
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Labor sides find 'deadline' in 8th Circuit ruling

The NFL labor fracas for months has been searching for a meaningful deadline. At long last, one’s at hand: securing the framework for a new collective-bargaining agreement before a lockout decision is issued by the 8th U.S. Circuit Court of Appeals.

Neither the NFL nor the players previously have been moved, at least at the same time, to resolve their dispute no matter the deadline they were facing, whether it was the looming expiration of the CBA in early March, the first round of court battles in April or mediation in May.

It’s a well-worn maxim in labor battles that deals get done on deadline, but there hasn’t been a deadline the two sides could agree was urgent — until now. With owners set to meet Tuesday in Chicago, with a framework deal possible and progress occurring in negotiations over the last few weeks, there is a deadline.

“Both sides have to recognize that the 8th Circuit may impact how much they may make, not just on this deal, but future deals,” said Gabe Feldman, director of the Tulane University sports law program and an NFL Network legal analyst. “It will at least in part help shape the leverage in future negotiations.”

If the 8th Circuit were to rule not just that the three-month-old lockout can stay in place, but also that the players’ antitrust actions must wait, say, six months after a decertification, that would neutralize a major weapon in the NFL Players Association’s arsenal. Decertification followed by simultaneous antitrust action against the league, a sequence the players executed on March 11, has been an NFLPA threat for years.

Under labor law, a union cannot sue for antitrust violations, but it’s long been an article of faith that by decertifying, employees could immediately gain antitrust protections. That exposes the league’s free agency restrictions to antitrust challenges, so the threat of decertification has always been viewed as a serious one by the NFL.

“If the players lose the right to do this, they are dead in the future,” said Mark Levinstein, a Williams & Connolly partner who has represented athletes and sports unions. Without the decertification option, Levinstein predicts the players will have a tough time winning at the negotiating table if the owners can simply lock them out without fear of an antitrust response.

While the 8th Circuit in its May 16 stay decision suspending a lower court’s injunction of the lockout strongly suggested the players’ antitrust lawsuit might have to wait a period of time after a decertification, that’s not a precedent until the appeal ruling, if it comes.

“Right now the only legally binding precedent is [the lower court],” said John Goldman, a labor attorney with Herrick, Feinstein who described the stay as akin at this point to an advisory opinion. “From a legal perspective, there is no precedent from the 8th Circuit that says the league can lock them out and the players are not entitled to overcome that.”

The players are not the only ones, however, to fear an 8th Circuit ruling, which could come as early as the end of the month.

While the 8th Circuit is considered likely to keep the lockout in place, it could also say antitrust rules already apply, or at the least that they will soon, maybe by the start of the season. That could expose the league to potentially significant damages if the lockout were later found by a court to violate antitrust laws. One of the 8th Circuit judges had suggested a period of six months during June 3 oral arguments.

“Without an exemption [from antitrust law], you can’t have salary caps and lockouts,” Levinstein said. “They [the NFL] have got problems.”

The race to beat the 8th Circuit has not been a foregone conclusion. Many observers presumed the sides would wait for a decision and then assess their positions — the reason for predictions that the preseason might be lost, if not the start of the regular season as well. And until the first round of what were intended to be secret meetings occurred in Chicago June 1-2, on the eve of the 8th Circuit oral arguments, approaching deadlines did little to affect the talks. But Judge Kermit Bye of the 8th Circuit earlier this month warned each side that they both might not like a decision, and the realistic chance of missing games, and paychecks, seems to have brought a deadline into better focus.

Levinstein warns, however, that it would be a mistake for the players to rush into a deal and drop the antitrust lawsuit as part of an umbrella settlement. In a normal unwinding of an antitrust lawsuit, he said, the class would have about six weeks to object to the terms of the settlement, and then the judge might take even longer to affirm the agreement. That timeline, in this case, would take the process well into the 2011 season, he said, something the NFL is sure to object to. But if the players simply pull the lawsuit, it would make it much harder to renounce union status again in the future, he said.

“If they simply say ‘We will go back to being a union’ and drop the case, that is shocking,” he said. “It is a total loss in my mind [if that happens].”