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Volume 23 No. 18
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Class-action push brings new threat to NFL schedule

As the NFL and its players strive to agree on a new labor deal to end the now four-month-old lockout, a separate issue has emerged that could still endanger the preseason and perhaps the regular season: how to unwind the antitrust case filed against the league by 10 players.

Outside counsel for the players, which include Tom Brady and Drew Brees, are pushing for the case (Brady v. NFL) to become a class action before it’s settled as part of a new labor deal, multiple sources said. A class-action settlement requires a 30- to 45-day window for comment, perhaps longer. So even if a deal on issues like revenue split and rookie wage scale is reached as soon as this week, unless the league is willing to lift the lockout before the resultant settlement is formal — something league brass have publicly said they will not do — it could mean a longer wait to open the NFL season, these sources said.

Jim Quinn is representing players in the antitrust lawsuit, alongside Jeffrey Kessler.
While the push for class standing could still be dropped, the outside counsel, Jeffrey Kessler and Jim Quinn, could want a class action in part because any other disposition of the lawsuit might suggest the NFL Players Association’s decertification and simultaneous antitrust lawsuit was a sham, as the league alleged. That could impair the strategy of decertification in the future.

“I really don’t get how they get it done on time,” said Mark Levinstein, a sports labor attorney at Williams & Connolly who is a counsel to the United Football League. “The players’ view is the league will open camps on faith [once the framework is agreed to], and the league’s is players will just drop the lawsuit and have a union.”

Quinn in an email replied “nonsense” to questions about whether pushing for a class certification would delay the process. He did not reply to follow-up questions about how the season could open on time if a class motion is filed and the league will not open camps until all legal procedures are completed.

For Brady v. NFL to become a class action, counsel would need to file a class motion before the court, which would then give class members — in this case, all players — time to object. The court could then certify the class and approve the settlement, with the labor deal likely an amendment to the agreement. This is what unfolded with an antitrust case against the league in 1993.

In late May, at an owners meeting in Chicago, NFL general counsel Jeff Pash said the league would not lift the lockout until every “i” was dotted and “t” was crossed. Asked later about the issues of class certification, he responded there was no class, so it should not be an issue. Indeed, two immediate options would be that the 10 named players could voluntarily dismiss the lawsuit, or only they sign a settlement.

That would destroy the leverage of NFL players in future negotiations, Levinstein contended. The threat to decertify and file antitrust cases is a major weapon of players, he said.

In recent weeks, the sources said, Kessler and Quinn have advocated for a class certification as a way of protecting NFL players’ future rights.

If a class is certified, the lawyers would likely become trustees of the class, which would earn them fees. Kessler had been trustee of the now-defunct “White class,” which formed in 1993 in the wake of the settlement of the Reggie White antitrust case. The White class expired with the old CBA in March.

In addition, antitrust cases that are settled traditionally bring judicial oversight. The league opposes judicial oversight of the NFL’s labor ties with the NFLPA. Commissioner Roger Goodell told reporters in May that he anticipated a new deal would drop judicial oversight. The NFLPA has declined to comment on this point. So even if the league and players can figure a way to agreeably and expeditiously resolve the lawsuit, they would still have to agree on the issue of dispute-resolution mechanisms.

“Thirty-two owners will stay shut for the season over that one,” said one league source about judicial oversight.