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Volume 21 No. 1

Law and Politics

The NFL Players Association may have to defend how it represented retirees during the 2011 lockout, two federal appeals court judges strongly suggested last week, an outcome that could dramatically change the union’s responsibilities to former players.

A lower court last year dismissed a case brought by retirees alleging that the NFLPA, in striking the current collective-bargaining agreement, interfered with the former players’ then-concurrent negotiations with the NFL, thus depriving them of $600 million and medical monitoring.

Carl Eller, shown in 2011, leads the lawsuit by the retirees.
Photo by: AP IMAGES
But if comments made by two of the three judges on an 8th U.S. Circuit Court of Appeals panel last week are an indication, the case may be sent back to proceed — meaning the retirees, led by Carl Eller, could litigate their contention that the NFLPA sold out former players to better current ones.

The case is Carl Lee Eller, et al v. NFL Players Association, et al.

“This is starting to sound like a breach of duty, wrongful-conduct case,” Judge C. Arlen Beam said during last week’s hearing in St. Paul, Minn.

While that might sound mundane, it could be notable here, because in collective bargaining, a union has no official duty to retirees, and that’s the core legal defense of the union in this case. What two of the three judges contended is that the union may indeed have an obligation to the retirees — outside of labor law.

“I am not talking about labor law; we are outside that box,” said Judge James Loken, responding to the union lawyer who protested that the case could not proceed under well-established labor law. “I care about the environment of collective bargaining in the United States, which for a century has included active employees recognizing their own future in the offing, and voluntarily negotiating benefits for retirees. … The common law has been evolving toward duties for about 200 years. Why isn’t this a perfectly good environment to say common law does stretch this far?” he asked.

The union’s lawyer, Andrew Tulumello, later protested, “I would submit, your honor, that would be a virtually unprecedented decision to say there would be a tort duty.” A tort duty is when a person or organization has a legal responsibility to represent another in a reasonable and fair way. While the NFLPA has negotiated retiree benefits before, it has done so voluntarily and has been seen as shielded from lawsuits over its role because it owes retirees no legal duty.

Loken responded, “It is going to be virtually unprecedented, whichever way we decide it, whichever court decides it.”

The retirees contend that the active players kept them out of mediation in 2011, illegally negotiating on their behalf and then cementing inferior benefits in the CBA, meaning they could not be challenged. Those benefits, the retirees contend, were $600 million less than the NFL offered before the lockout and did not include other terms that had been offered.

“You guys built a wall for the NFL to hide behind,” Loken told Tulumello, meaning the active players had ensured the NFL would not have to negotiate more retiree benefits during the 10-year term of the CBA. Beam added his assent to the perspective.

The NFLPA does appear to have an ally in Judge Kermit Bye, who spoke little but when he did sided with the union.

Bye in 2011 dissented when an 8th Circuit appeals panel stayed a lower court decision invalidating the lockout. That lower-court ruling came from the same district court judge, Susan Nelson, who last year dismissed this case.

Gary Roberts, a former NFL outside counsel and dean of the Indiana University School of Law, said he agreed with the NFLPA that the case should be governed by labor law and dismissed. But if it does go back to the lower court, he said, it could become a headache for the union by exposing the group to discovery and reopening the at-times messy 2011 labor process.

Jeffrey Kessler, an outside counsel for the NFLPA who was a key adviser during the 2011 CBA process, declined to comment.