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Volume 20 No. 45
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NFL’s promise revealed in Brady documents

Before the end of the NFL lockout 13 months ago, many insiders worried that the time-consuming process of certifying a class of players as part of the antitrust case that had been filed against the league could delay the start of the season. In the end, no class was certified to match what occurred with the antitrust case of 20 years earlier and the creation of the White class, named after late defensive end Reggie White.

As it turns out, the NFL Players Association was concerned, according to newly released court documents, how that lack of class standing might be perceived down the line. In the legal settlement that ended the 2011 Brady v. NFL antitrust case and the associated lockout, the NFL promised not to use the lack of a class certification against the players if they were ever in court under similar circumstances again.

The details came to light with the recent public release of the legal settlement, an agreement that was attached as an exhibit in a filing by the union last month as part of the collusion case on which federal judge David Doty will hear arguments this week.

At issue is how the NFL perhaps could have questioned any future antitrust lawsuit because this most recent one, named after New England quarterback Tom Brady among other plaintiffs, never led to a class certification.

“The NFL … agrees that, in any future legal proceeding concerning any potential future disclaimer by the NFLPA of its union status, the NFL … may not use or refer to the fact that the Brady action was resolved by a non-class settlement, to support any argument that the non-statutory labor exemption or other defense applies to a lockout,” the settlement states.

The nonstatutory labor exemption refers to the fact that leagues such as the NFL can engage in acts, such as the draft or free agency restrictions, that normally would be considered collusive but are not in a collective-bargaining relationship. The league also largely successfully argued in court last year the exemption applied to a lockout even if the union had disbanded, as the NFLPA had done in order to bring the lawsuit.

So, in essence, the agreement notes that while the NFL can invoke the labor exemption in the event of a future disclaimer and lockout, it may not use the lack of a class certification in Brady to challenge the union’s disbandment or any potential antitrust lawsuit.

At least one sports law expert said he was puzzled by the language.

“[What] I don’t understand is why the NFL’s argument that the union’s disclaimer is ineffective in lifting the labor exemption defense would be any stronger because the Brady settlement was a non-class-action settlement instead of a class-action settlement,” said Gary Roberts, a former NFL outside counsel and Indiana University law professor.

It’s all quite theoretical at the moment: The NFL is entering the second season of a 10-year CBA with no opt-out provision, meaning coverage until at least 2021.