CBA litigation

[Malazan]

profootballtalk is not a credible source.

[San Jose Bills Fan]

profootballtalk is not a credible source.

Disagree.

[dave mcbride]

no, it would not fail. the result would basically resemble baseball, a sport that i watch every single day. baseball has survived labor struggles and rampant cheating. the fans keep coming back. baseball will NEVER go away. there might be less teams in the end due to the competitive imbalance but that is not "failure". would a team like the bills be screwed if an owner like ralph held onto the team? of course. but imagine if pegula bought the team. bills fans would be BEGGING for this sort of radical change, we'd be the yankees/red sox of football

Um, baseball has a draft (over 50 rounds!) and revenue sharing ...

[DanInUticaTampa]

Um, baseball has a draft (over 50 rounds!) and revenue sharing ...

 

 

Yet the yankees greatly outspend the pirates every year. There is no gap THAT big in the nfl.

[Mickey]

First, I hope the 2011 season is played in full. But I have a few questions about the issues here.

 

As I read the owners' brief in the OP's link, the owners are basing their jurisdictional argument on the statutory language "ceasing or refusing ... to remain in any relation of employment." How do you counter the owners' argument that (1) 29 U.S.C. S 178 exempts certain presidential requests for injunctions against both strikes AND lockouts from the anti-injunction provisions of the Norris-LaGuardia Act, and (2) there would be no reason to include "lockouts" in the text of the 29 U.S.C. S 178 exemption if the Norris-LaGuardia Act's anti-injunction provision applied only to strikes and did not apply to lock-outs? I don't think you need to be a lawyer to understand the logic of the owners' argument here.

 

There may very well be reasons why the owners' jurisdictional argument fails, but your post doesn't seem to address the stronger parts of the owners' jurisdictional argument. Did the owners' brief misrepresent the text of 29 U.S.C. S 178? Is there some reason why that statute should not be interpreted as showing that Congress apparently believed that the existing anti-injunction provisions of the Norris-LaGuardia Act applied to both strikes AND lockouts? If the plain text of the anti-injunction provision is even a little bit ambiguous, doesn't that evidence of Congressional intent matter?

 

Again, I'm not saying the owners will win the jurisdictional argument. I'm just curious how you would refute the parts of the owners' jurisdictional argument that I find stronger than what you've already addressed.

 

I am impressed that you are trying to think through these arguments which are complicated and constructed by some of the smartest lawyers around being paid very well to craft arguments which look very strong no matter how weak they may actually be. This is not my specialty and frankly, even if it was I would have trouble keeping up with these guys.

 

There are so many problems with the NFL's argument using the provision of the LMRA that it is difficult to know where to begin. That may be why it was covered in a footnote in the NFL's brief and replied to, also in a footnote, by the Players. I don't think either side puts much stock in the reasoning that because some other law, applicable to some other set of circumstances, mentions the words "lockout" and "Norris LaGuardia" it settles the arguement as to whether Norris covers lockouts.

 

The rules of statutory construction state that you give the words in the statute their plain and natural meaning and if that answers the question, no further inquiry is done. If it doesn't, there are other sources with different priorities that can be referenced. Congrerssional intent when they passed the statute at issue would be high on the list. Reading other laws to see what this law means would be way down the list. Here, the plain words of the statute are not unclear or ambiguous. If congress wanted to include lockouts, all they had to do was say so. They did not.

 

They did include language which described strikes and because they wanted to included situations where workers ended their employment relationship altogether and when it is a temporary situation, they included that part about "ceasing...to remain in any relation of employment..." The NFL is trying to ignore the part about who is doing the "ceasing" and inserting words that are not there. The statute refers to workers "ceasing or refusing to perform work" because that is who performs work, workers. Those workers however might choose to end any employment relationship they have rather than just to refuse to work. Congress wanted to be sure to include both under Norris. When they refuse to perform work, they are striking in the way that strikes are usually understood. "We refuse to work until you give us higher wages..." But there is another work stoppage where workers quit their jobs and then picket to prevent operations. Its a tactical decision unions make for all sorts of reasons too byzantine to bother with here. Congress wanted to cover both situations so they added the part about "remain in any relation of employment..." The league is reading that part and saying that since the league's lockout is a lot like "refusing to remain in any relation of employment", that the act covers them.

 

Remember that the first question is whether Norris applies when there is no union. Workers are entitled to form unions, they are also entitled to disband them. They should be able to do so without forever being subject to laws applying to unions even whey they no longer have one. Norris is clear on that point, that it applies only to labor disputes. Congress didn't want wealthy owners with access to friendly judges to be able to get an injunction stopping a strike, essentially turning unions into toothless tigers. You have to get past that problem first. Only if you assume that Norris applies to this "unionless" dispute do you get to the next question, "...assuming Norris applies despite the union being decertified, does it prohibit injuncitons against lockouts?" That is the question at stake in the NFL brief that you have focused on.

 

By the way, Norris has a public policy statement in it, an explanation for why it was enacted, that you might find interesting because it gives some context. It states that because"...the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor...the following...limitations upon the jurisdiction and authority of the courts of the United States are enacted." Does that sound like Congress was looking to protect owners from meddling courts so that they could lockout workers who are not even in a union? Where they got in to trouble was in their efforts to make sure that no worker or union or trade association or other group of potentially interested laborers was left out of the act. Consider sympathy strikes. Or, lets say there was a ladies auxillary collecting donated food for striking workers. Along comes an owner and goes in to court and gets an injunction, from a judge who is in their pocket, against them entering on to company land where all the workers live in company owned housing. If Norris wasn't written expansively, the owner's lawyer could argue that it didn't cover those charitable ladies so the injunction could be issued. What Congress wrote is so expansive that many decades later, without the context of 1930's era labor disputes to give it meaning, there is room to argue that what was never meant to be covered is in fact covered.

 

As for the specific issue you are interested in, Congress decided that it would be a good thing to empower a President to end a strike to prevent a national emergency. So they enacted LMRA giving him the power to do so but with a variety of controls so that he or she doesn't abuse that power and call every namby pamby strike a national emergency. A national emergency could arise just as easily from a lockout as it would a strike. Both result in workers doing no work which, if a critical industry is involved, could result in a national emergency. So they included lockouts. Then, because Norris specifically prohibits injunctions from being used to stop strikes, Congress also put in a line exempting the President's emergency injunction from Norris. The exemption was necessary as to strikes, it wasn't for lockouts. Obviously then, congress had to put in the exemption to cover the issue with strikes. The NFL takes a leap in logic to conclude that the exemption also covers lockouts. An ironic argument don't you think? Back away a bit and look at the big picture, they are saying that one statute which allows an injunction in a labor dispute compels the conclusion that another statute prohibits an injunction of a labor dispute. Shorten that to say "Becaue the judge can issue an injunction, the the judge can't issue an injunction."

 

Does anybody really think that congress decided to include lockouts in Norris and did so by the indirect, incomplete, barely comprehensible method of creating an exemption in another statute drawn to address national emergencies? I won't stand second to anyone in the conviction that congress is stupid but they aren't that stupid. That would be like removing "thou shalt not kill" form the ten commandments and then translating it to old low norse before moving it to a footnote in an obsure passage of revelations.

 

The league isn't being disingenous, they are grabbing any thread of an argument they can find. Their argument here is, in my opinion, a long, long, long stretch but its logical enough to make it with a straight face and God knows what a judge might find to be persuasive. Its worth a shot.

 

They don't have to win this fight, they just have to delay this fight until the players can't hold out any longer as they all have bills to pay. The players know that their ability to win an anti-trust case against the NFL is stronger than their ability to hold out long enough to win that case. They will want to push things along and keep the money flowing if at all possible while the league will want to delay things as long as they can.

 

I am backing the players because those are the guys that actually play football. Watching a team accountant balance the books for the frist quarter is way less exciting to me than watching Fitz hit Johnson deep for six. More to the point though, if the players win the injunciton issue, we have football. If they lose, we don't. The nice thing about the injunction, I believe, is that we get our football no matter how long it takes these people to work out a deal. If the injunction is lifted, then whether and when we see an uninterrupted season depends entirely on these people reaching a deal before the end of July, about 80 days from now. Let them play.

 

 

 

 

Think again:

 

 

 

more

 

 

Players are under contract with their respective teams. When a player shows up to play, they have fulfilled their end of the bargain. I hardly think that the league is going to risk those breach of contract suits and, in some states, treble damages for nonpayment of wages.

 

There comes a point where all the money out there in the big wide world congeals and decides that this is the time to start a new pro football league with all those out of work superstars. That is what happened when the NFL simply dragged its feet in expanding to new, football desperate cities in the 1950's. Imagine what would happen if that capital didn't have to compete with the NFL for fans, players, TV contracts and the like.

[ICanSleepWhenI'mDead]

By the way, Norris has a public policy statement in it, an explanation for why it was enacted, that you might find interesting because it gives some context.

Thanks, I did find that interesting. I've read some of the trial court briefs, but the only 8th Circuit brief I've read was the NFL's brief referenced in my earlier post. When I have time, I will try to read the players' brief(s) with your comments in mind. I appreciate your taking the time to give me your take. Let's hope we have a full schedule of games this fall.

[Taro T]

I am impressed that you are trying to think through these arguments which are complicated and constructed by some of the smartest lawyers around being paid very well to craft arguments which look very strong no matter how weak they may actually be. This is not my specialty and frankly, even if it was I would have trouble keeping up with these guys.

 

There are so many problems with the NFL's argument using the provision of the LMRA that it is difficult to know where to begin. That may be why it was covered in a footnote in the NFL's brief and replied to, also in a footnote, by the Players. I don't think either side puts much stock in the reasoning that because some other law, applicable to some other set of circumstances, mentions the words "lockout" and "Norris LaGuardia" it settles the arguement as to whether Norris covers lockouts.

 

The rules of statutory construction state that you give the words in the statute their plain and natural meaning and if that answers the question, no further inquiry is done. If it doesn't, there are other sources with different priorities that can be referenced. Congrerssional intent when they passed the statute at issue would be high on the list. Reading other laws to see what this law means would be way down the list. Here, the plain words of the statute are not unclear or ambiguous. If congress wanted to include lockouts, all they had to do was say so. They did not.

 

They did include language which described strikes and because they wanted to included situations where workers ended their employment relationship altogether and when it is a temporary situation, they included that part about "ceasing...to remain in any relation of employment..." The NFL is trying to ignore the part about who is doing the "ceasing" and inserting words that are not there. The statute refers to workers "ceasing or refusing to perform work" because that is who performs work, workers. Those workers however might choose to end any employment relationship they have rather than just to refuse to work. Congress wanted to be sure to include both under Norris. When they refuse to perform work, they are striking in the way that strikes are usually understood. "We refuse to work until you give us higher wages..." But there is another work stoppage where workers quit their jobs and then picket to prevent operations. Its a tactical decision unions make for all sorts of reasons too byzantine to bother with here. Congress wanted to cover both situations so they added the part about "remain in any relation of employment..." The league is reading that part and saying that since the league's lockout is a lot like "refusing to remain in any relation of employment", that the act covers them.

 

Remember that the first question is whether Norris applies when there is no union. Workers are entitled to form unions, they are also entitled to disband them. They should be able to do so without forever being subject to laws applying to unions even whey they no longer have one. Norris is clear on that point, that it applies only to labor disputes. Congress didn't want wealthy owners with access to friendly judges to be able to get an injunction stopping a strike, essentially turning unions into toothless tigers. You have to get past that problem first. Only if you assume that Norris applies to this "unionless" dispute do you get to the next question, "...assuming Norris applies despite the union being decertified, does it prohibit injuncitons against lockouts?" That is the question at stake in the NFL brief that you have focused on.

 

By the way, Norris has a public policy statement in it, an explanation for why it was enacted, that you might find interesting because it gives some context. It states that because"...the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor...the following...limitations upon the jurisdiction and authority of the courts of the United States are enacted." Does that sound like Congress was looking to protect owners from meddling courts so that they could lockout workers who are not even in a union? Where they got in to trouble was in their efforts to make sure that no worker or union or trade association or other group of potentially interested laborers was left out of the act. Consider sympathy strikes. Or, lets say there was a ladies auxillary collecting donated food for striking workers. Along comes an owner and goes in to court and gets an injunction, from a judge who is in their pocket, against them entering on to company land where all the workers live in company owned housing. If Norris wasn't written expansively, the owner's lawyer could argue that it didn't cover those charitable ladies so the injunction could be issued. What Congress wrote is so expansive that many decades later, without the context of 1930's era labor disputes to give it meaning, there is room to argue that what was never meant to be covered is in fact covered.

 

As for the specific issue you are interested in, Congress decided that it would be a good thing to empower a President to end a strike to prevent a national emergency. So they enacted LMRA giving him the power to do so but with a variety of controls so that he or she doesn't abuse that power and call every namby pamby strike a national emergency. A national emergency could arise just as easily from a lockout as it would a strike. Both result in workers doing no work which, if a critical industry is involved, could result in a national emergency. So they included lockouts. Then, because Norris specifically prohibits injunctions from being used to stop strikes, Congress also put in a line exempting the President's emergency injunction from Norris. The exemption was necessary as to strikes, it wasn't for lockouts. Obviously then, congress had to put in the exemption to cover the issue with strikes. The NFL takes a leap in logic to conclude that the exemption also covers lockouts. An ironic argument don't you think? Back away a bit and look at the big picture, they are saying that one statute which allows an injunction in a labor dispute compels the conclusion that another statute prohibits an injunction of a labor dispute. Shorten that to say "Becaue the judge can issue an injunction, the the judge can't issue an injunction."

 

Does anybody really think that congress decided to include lockouts in Norris and did so by the indirect, incomplete, barely comprehensible method of creating an exemption in another statute drawn to address national emergencies? I won't stand second to anyone in the conviction that congress is stupid but they aren't that stupid. That would be like removing "thou shalt not kill" form the ten commandments and then translating it to old low norse before moving it to a footnote in an obsure passage of revelations.

 

The league isn't being disingenous, they are grabbing any thread of an argument they can find. Their argument here is, in my opinion, a long, long, long stretch but its logical enough to make it with a straight face and God knows what a judge might find to be persuasive. Its worth a shot.

 

They don't have to win this fight, they just have to delay this fight until the players can't hold out any longer as they all have bills to pay. The players know that their ability to win an anti-trust case against the NFL is stronger than their ability to hold out long enough to win that case. They will want to push things along and keep the money flowing if at all possible while the league will want to delay things as long as they can.

 

I am backing the players because those are the guys that actually play football. Watching a team accountant balance the books for the frist quarter is way less exciting to me than watching Fitz hit Johnson deep for six. More to the point though, if the players win the injunciton issue, we have football. If they lose, we don't. The nice thing about the injunction, I believe, is that we get our football no matter how long it takes these people to work out a deal. If the injunction is lifted, then whether and when we see an uninterrupted season depends entirely on these people reaching a deal before the end of July, about 80 days from now. Let them play.

 

 

 

 

 

 

 

Players are under contract with their respective teams. When a player shows up to play, they have fulfilled their end of the bargain. I hardly think that the league is going to risk those breach of contract suits and, in some states, treble damages for nonpayment of wages.

 

There comes a point where all the money out there in the big wide world congeals and decides that this is the time to start a new pro football league with all those out of work superstars. That is what happened when the NFL simply dragged its feet in expanding to new, football desperate cities in the 1950's. Imagine what would happen if that capital didn't have to compete with the NFL for fans, players, TV contracts and the like.

Interesting analysis. Thanks for the perspective.

 

2 questions: is there anything preventing the NFLPA recertifying at a later date (including while the lawsuits / negotiations are ongoing) if it so chooses? And, if the injunction is upheld and the lockout goes bye-bye, if the players recertify prior to an agreement being reached, what incentive do the players have to reach an agreement prior to January or so, when they have all been paid for the year but then they can hold out the threat of a strike which would cancel the Superbowl? It seems to me that D. Smith is very willing to play hardball, unless the owners capitulated big time I don't see why he'd pull that threat off the table.

 

My concern in all of this is, I want to see an agreement (regardless of which side 'wins') in which the Bills remain viable long term in Buffalo. And I could see the owners with huge debt service on their brand new $1B stadiums being willing to throw owner unity out the window when the possibility of high outlays w/ no income streams start looking like reality to the 'big fish' when a recertified NFLPA starts chanting 'give us what we want or we strike.'

 

I don't particularily care which side wins, I just don't want to end up having the Bills fans lose. I'd prefer it not come to it, but I'd much prefer to lose the 2011 season and have a system in place going forward that the Bills can not only exist but thrive, rather than have them play this year and be gone w/in the decade. If a strike isn't a plausible threat (presumably because there is no union to call a strike), I'd be more inclined to side w/ the players; but I haven't seen anyone address that possibility yet.

[Fixxxer]

Players are under contract with their respective teams. When a player shows up to play, they have fulfilled their end of the bargain. I hardly think that the league is going to risk those breach of contract suits and, in some states, treble damages for nonpayment of wages.

 

There comes a point where all the money out there in the big wide world congeals and decides that this is the time to start a new pro football league with all those out of work superstars. That is what happened when the NFL simply dragged its feet in expanding to new, football desperate cities in the 1950's. Imagine what would happen if that capital didn't have to compete with the NFL for fans, players, TV contracts and the like.

 

I never implied owners could shutdown without honoring their obligations. If this is their nuclear option they will study it's merit within the legal frame, they have Bob Betterman as one of their lawyers so I'm guessing this could be more than a rumor. Maybe this is point break for the owners, they're willing to lose some money to gain the leverage the court will never grant them.

[djrocks]

Yep, they need to get things resolved fast because at the rate things are going, most of the players are going to be in jail for one reason or another. The players need to be on the field practicing, not getting busted for DUI, possession, mistaken identity (see Hines Ward), etc.

 

A question for the audience here, but what in the hell is Goodell's job anyway? He's the commissioner!!! Shouldn't he be more than a bystander during all this? All I can say is crap rolls down hill and Karma is hell. Let's see: No football equals no NFL ticket subscriptions, no ticket sales, no jersey sales, no concession stand sales, just as a start. Money that ordinary people that work the concession stands, pro shops counted on for extra income goes away.

 

I'm really perplexed that these two sides can't reach an agreement!!! When the economy is the way it is, prices going up, employees having to take furlough days, it's just sickening the way both sides are acting. Well come this fall when the players who only get league minimum salary are behind in their mortgages, car payments, and credit card for jewelry stores, they can thank the Jerry Jones, Bob Krafts, Tom Bradys, and Drew Brees. Just like when the baseball strike happened, how many fans walked out on the sport? It'll be interesting to see how many fans support the NFL after this.

 

 

 

this whole process went down the drain when upshaw died and the stupid players hired a lawyer in smith who has no idea of what the NFL is all about.

 

this idiot convinced the the players that the answer to their problems was to not negotiate and let the courts settle what should be settled thru collective bargaining. on the day they decertified with the owners putting a much better offer on the table and them never even countering and decertifing says it all.

 

we have no one to blame here but the payers and i hope they get it shoved up their collective stupid butts.

[Beerball]

League asks court to protect teams from each other.

 

Lifting football's labor lockout without a new contract in place would allow better-off teams to sign the best players, tipping the NFL's competitive balance and damaging the league, attorneys for the owners argued in court papers Monday.

[Mickey]

I never implied owners could shutdown without honoring their obligations. If this is their nuclear option they will study it's merit within the legal frame, they have Bob Betterman as one of their lawyers so I'm guessing this could be more than a rumor. Maybe this is point break for the owners, they're willing to lose some money to gain the leverage the court will never grant them.

 

 

So far, Florio is the only source and he refers only to having heard "rumblings" which is about as lame of an attribution as there is. Stronger statements could be made and still preserve anonymity such as "credible sources", "highly placed league sources", etc. Technically, overhearing two fans speculating in a bar about the future of the litigation would qualify as having heard "rumblings". I don't think that the dispute is so deep rooted and the two sides so terribly far apart that it would justify that kind of a response. I also think that describing the players having decertified as a "nuclear option". There was a deadline by which they had to decertify or lose the ability to do so this year. Without an agreement worked out, the safest move they could make was to decertify. If and when a deal is worked out, it can provide whatever is needed to permit the union to re-certify and execute a binding CBA. The cost to the union of decertifying was essentially zero. That is not what one thinks of when hearing "nuclear option". What is being described regarding a complete league shutdown would not be as cost free as union decertification. It is an interesting idea to speculate about but I don't see it as realistic. Apart from the weak sourcing, it could be just a something floated by the league to scare the players. The key to breaking labor is to weaken the unity of the workers. Rumors like this can help make players very nervous.

[Mr. WEO]

Interesting analysis. Thanks for the perspective.

 

2 questions: is there anything preventing the NFLPA recertifying at a later date (including while the lawsuits / negotiations are ongoing) if it so chooses? And, if the injunction is upheld and the lockout goes bye-bye, if the players recertify prior to an agreement being reached, what incentive do the players have to reach an agreement prior to January or so, when they have all been paid for the year but then they can hold out the threat of a strike which would cancel the Superbowl? It seems to me that D. Smith is very willing to play hardball, unless the owners capitulated big time I don't see why he'd pull that threat off the table.

 

If they reform as a union, their antitrust suit cannot go forward.

 

You saying the players who win their conf championships would go on strike before the SB??

[yungmack]

Great analysis, Mickey. You would seem to be the one who maybe can answer a question that's been nagging at me. If the owners stop paying the players, doesn't that abrogate their contracts? In my "real world," I work under contract. Among the terms that break the agreement is non-payment. If that happens, I'm free to shop my services anywhere I want. I believe that's pretty much standard under contract law. So how is it the NFL owners are able to both cease payment AND keep the players under contract? Maybe Rashard Mendenhall was right; it sure does sound like a "peculiar institution."

[Mickey]

Interesting analysis. Thanks for the perspective.

 

2 questions: is there anything preventing the NFLPA recertifying at a later date (including while the lawsuits / negotiations are ongoing) if it so chooses? And, if the injunction is upheld and the lockout goes bye-bye, if the players recertify prior to an agreement being reached, what incentive do the players have to reach an agreement prior to January or so, when they have all been paid for the year but then they can hold out the threat of a strike which would cancel the Superbowl? It seems to me that D. Smith is very willing to play hardball, unless the owners capitulated big time I don't see why he'd pull that threat off the table.

 

My concern in all of this is, I want to see an agreement (regardless of which side 'wins') in which the Bills remain viable long term in Buffalo. And I could see the owners with huge debt service on their brand new $1B stadiums being willing to throw owner unity out the window when the possibility of high outlays w/ no income streams start looking like reality to the 'big fish' when a recertified NFLPA starts chanting 'give us what we want or we strike.'

 

I don't particularily care which side wins, I just don't want to end up having the Bills fans lose. I'd prefer it not come to it, but I'd much prefer to lose the 2011 season and have a system in place going forward that the Bills can not only exist but thrive, rather than have them play this year and be gone w/in the decade. If a strike isn't a plausible threat (presumably because there is no union to call a strike), I'd be more inclined to side w/ the players; but I haven't seen anyone address that possibility yet.

 

My understanding is that they can recertify whenever the players vote to do so and the paperwork can go through. But, once they have a union again, then collective bargaining becomes their remedy and the suit would likely be dismissed.

 

I agree with the idea that the new CBA needs to make teams like Buffalo viable. Don't be fooled by the lawsuit. The players didn't file it so that they could end the league as we know it. They filed it only because the league opted out of the existing CBA and then threatened a lockout during negotiations to try and force the players in to a deal. The players wanted more information from the league so as to determine on their own if the leagues complaints about money were legit. The league wouldn't fork over the books. At the very end, at the eleventh hour in fact, they offered a peak at the books which they say was sufficient and which the players say wasn't. None of us know who is beiong honest about that. There is no reason for the players to refuse a new deal if in fact, the leagues complaints about money are true. When a deal wasn't done this spring, time was running out on the players. They had to decertify by a certain date or lose the ability to do so this year. The court had been extending the date to allow additional negotiations but the players were at risk of the court finally refusing another extension request. So they went ahead and decertified and played the main card they have which is the suit.

 

The suit is pretty scary to owners because if it went the distance and the players won, their whole business model would go down the drain. More importantly, in a lawsuit the parties have a right to look at the other side's cards, its called "discovery". Ask Bill Clinton how much fun that is. The lawsuit would allow the players to peek up the skirts of the NFL's accountants, something they have always wanted to do and never been able to. Between the potential for disaster and unwanted disclosures, the suit gives the NFL plenty of reasons for wanting to get a deal done and end this foolishness. The players can always agree to a deal later, they lose nothing at this point to let things continue. However, if the lockout is no enjoined, players start losing $ eventually. I don't know how long the players can hang in there, maybe they don't even know.

 

My own sense of things is that time is on the league's side but that the weight of legal authority is on the player's side. No sense having the fastest horse if he can't finish the race.

 

For fans, no lockout means footbal can go on while these titans bicker and moan. A lockout means, I think, a stalemate for as long as the players can hold out which is a complete mystery to me.

[Taro T]

If they reform as a union, their antitrust suit cannot go forward.

 

You saying the players who win their conf championships would go on strike before the SB??

No, I'm saying that after the players have received (nearly) all of their paychecks (if it works out that it's legal) they might strike right before the playoffs start. Basically like the MLB players did back in '94. If they were going to strike, it'd probably be in early December, so there would be time to get a contract done before the playoffs had to be pitched.

 

I'd be very surprised if the players ever struck after the playoffs had actually begun as it would be PR suicide.

 

At the beginning of the season, before anybody's received a paycheck, the owners have the bulk of the leverage. The players decertified to take that away.

 

At the end of the season, after the players have been paid and the networks are looking forward to their playoff ratings, the players have the bulk of the leverage. I'm not about to try to learn the minutia of labor law, but was curious as to whether the players could recertify w/out having a contract in place and if so I don't see much stopping them from striking. They could always drop their lawsuit if they think the circumstances are more favorable at the negotiating table.

 

My understanding is that they can recertify whenever the players vote to do so and the paperwork can go through. But, once they have a union again, then collective bargaining becomes their remedy and the suit would likely be dismissed.

 

I agree with the idea that the new CBA needs to make teams like Buffalo viable. Don't be fooled by the lawsuit. The players didn't file it so that they could end the league as we know it. They filed it only because the league opted out of the existing CBA and then threatened a lockout during negotiations to try and force the players in to a deal. The players wanted more information from the league so as to determine on their own if the leagues complaints about money were legit. The league wouldn't fork over the books. At the very end, at the eleventh hour in fact, they offered a peak at the books which they say was sufficient and which the players say wasn't. None of us know who is beiong honest about that. There is no reason for the players to refuse a new deal if in fact, the leagues complaints about money are true. When a deal wasn't done this spring, time was running out on the players. They had to decertify by a certain date or lose the ability to do so this year. The court had been extending the date to allow additional negotiations but the players were at risk of the court finally refusing another extension request. So they went ahead and decertified and played the main card they have which is the suit.

 

The suit is pretty scary to owners because if it went the distance and the players won, their whole business model would go down the drain. More importantly, in a lawsuit the parties have a right to look at the other side's cards, its called "discovery". Ask Bill Clinton how much fun that is. The lawsuit would allow the players to peek up the skirts of the NFL's accountants, something they have always wanted to do and never been able to. Between the potential for disaster and unwanted disclosures, the suit gives the NFL plenty of reasons for wanting to get a deal done and end this foolishness. The players can always agree to a deal later, they lose nothing at this point to let things continue. However, if the lockout is no enjoined, players start losing $ eventually. I don't know how long the players can hang in there, maybe they don't even know.

 

My own sense of things is that time is on the league's side but that the weight of legal authority is on the player's side. No sense having the fastest horse if he can't finish the race.

 

For fans, no lockout means footbal can go on while these titans bicker and moan. A lockout means, I think, a stalemate for as long as the players can hold out which is a complete mystery to me.

Thanks for the response.

 

If the players can recertify at their own discretion, it seems to me that a strike is still viable if the injunction against the lockout holds.

 

I don't believe the players want to nuke the NFL. (It's a golden goose for them too.) I just think that if an agreement is made when the owners are under the more severe duress (either due to a lawsuit working its way through the courts or a strike/ threatened strike) then the bigger guys w/ the huge debt loads will have been the ones to crack and there is a greater likelihood that it'll be tough for the Bills to compete in the new landscape. (Kind of the way the bigger guys w/ the huge debt loads cracked last time and carried the bulk of the other owners with them.)

[ICanSleepWhenI'mDead]

Great analysis, Mickey. You would seem to be the one who maybe can answer a question that's been nagging at me. If the owners stop paying the players, doesn't that abrogate their contracts? In my "real world," I work under contract. Among the terms that break the agreement is non-payment. If that happens, I'm free to shop my services anywhere I want. I believe that's pretty much standard under contract law. So how is it the NFL owners are able to both cease payment AND keep the players under contract? Maybe Rashard Mendenhall was right; it sure does sound like a "peculiar institution."

I'll leave the legal analysis to others, but if you want to see how the payment obligations are spelled out in a typical NFL player contract, there is a "standard form" player contract reproduced as Appendix C at page 248/301 of the recently expired CBA at this link:

 

http://images.nflplayers.com/mediaResources/files/PDFs/General/NFL%20COLLECTIVE%20BARGAINING%20AGREEMENT%202006%20-%202012.pdf

 

It appears that the "standard form" can be customized in various ways to fit the particular player/team situation, but in the absence of any customization, the default provisions for compensation and payment are found at paragraphs 5 and 6 (starting at document page 250/301). I've read media reports about things like roster bonuses and workout bonuses that aren't in the standard form, so there may be plenty of customized terms in most player contracts. But it looks like the default provision is that base salary doesn't start getting paid until the first regular season game is played.

[Mr. WEO]

No, I'm saying that after the players have received (nearly) all of their paychecks (if it works out that it's legal) they might strike right before the playoffs start. Basically like the MLB players did back in '94. If they were going to strike, it'd probably be in early December, so there would be time to get a contract done before the playoffs had to be pitched.

 

I'd be very surprised if the players ever struck after the playoffs had actually begun as it would be PR suicide.

 

At the beginning of the season, before anybody's received a paycheck, the owners have the bulk of the leverage. The players decertified to take that away.

 

At the end of the season, after the players have been paid and the networks are looking forward to their playoff ratings, the players have the bulk of the leverage. I'm not about to try to learn the minutia of labor law, but was curious as to whether the players could recertify w/out having a contract in place and if so I don't see much stopping them from striking. They could always drop their lawsuit if they think the circumstances are more favorable at the negotiating table.

 

 

Thanks for the response.

 

If the players can recertify at their own discretion, it seems to me that a strike is still viable if the injunction against the lockout holds.

 

I don't believe the players want to nuke the NFL. (It's a golden goose for them too.) I just think that if an agreement is made when the owners are under the more severe duress (either due to a lawsuit working its way through the courts or a strike/ threatened strike) then the bigger guys w/ the huge debt loads will have been the ones to crack and there is a greater likelihood that it'll be tough for the Bills to compete in the new landscape. (Kind of the way the bigger guys w/ the huge debt loads cracked last time and carried the bulk of the other owners with them.)

If they reform the union, their options are limited to accepting the NFL's last offer or go on strike. There is no way players are going to play all year and then, on the eve of the playoffs, go on strike. That would simply never happen.

[Taro T]

If they reform the union, their options are limited to accepting the NFL's last offer or go on strike. There is no way players are going to play all year and then, on the eve of the playoffs, go on strike. That would simply never happen.

Why would it not happen if they've been playing all year without a CBA? The MLB players killed an entire postseason in '94 and the NHL players pulled off a successful strike in the spring of '92.

 

It seems to me that they'd have a 3rd option if they were reformed as a union - continue negotiating w/ the owners. I wouldn't expect to see that happen, but it is an available option. But if they weren't happy w/ the way things were looking in the court system, I'm not seeing why they wouldn't consider a strike an option. I wouldn't be surprised to see the NFL close up shop, at least temporarily in the Spring, if things haven't been resolved by then. At that time the leverage would be shifted back towards the owners, so I don't see why a players strike 'would simply never happen' when they would gain leverage.

[Fixxxer]

So far, Florio is the only source and he refers only to having heard "rumblings" which is about as lame of an attribution as there is. Stronger statements could be made and still preserve anonymity such as "credible sources", "highly placed league sources", etc. Technically, overhearing two fans speculating in a bar about the future of the litigation would qualify as having heard "rumblings".

 

I agree there isn't a credible source behind this, but the NHL shutdown is enough precedent to conclude that this might be a possibility, moreso when Bob Batterman is on the NFL lawyers team. Rumbling or not, I see the owners taking this route if the terms of a new CBA are forced to them.

 

I don't think that the dispute is so deep rooted and the two sides so terribly far apart that it would justify that kind of a response. I also think that describing the players having decertified as a "nuclear option". There was a deadline by which they had to decertify or lose the ability to do so this year. Without an agreement worked out, the safest move they could make was to decertify. If and when a deal is worked out, it can provide whatever is needed to permit the union to re-certify and execute a binding CBA. The cost to the union of decertifying was essentially zero. That is not what one thinks of when hearing "nuclear option". What is being described regarding a complete league shutdown would not be as cost free as union decertification. It is an interesting idea to speculate about but I don't see it as realistic. Apart from the weak sourcing, it could be just a something floated by the league to scare the players. The key to breaking labor is to weaken the unity of the workers. Rumors like this can help make players very nervous.

 

I didn't invent the "nuclear option" term. It was first used by the media to describe the antitrust lawsuits the players were going to fill after a possible decertification.

I know shutting down a league is not simple nor cheap but I see the owners saying this is enough, the business it's at an all time high but it's probably very close to it's peak of growth. If that is the case, when is enough for the players to get more? it's evident the owners (who know a thing or two about economics) are not happy with the last business model and see no more venues to squeeze a potential large revenue to share with the players.

If I were an owner and my accountant is telling me that certain business model is unsustainable, not for the now but for an eventual future, you better believe that I'm listening (no matter how good the business is) If I have to lose now to earn more in the future, I buckle up and take care of my business before it's too late.

[BillsfaninFl]

 

I know shutting down a league is not simple nor cheap but I see the owners saying this is enough, the business it's at an all time high but it's probably very close to it's peak of growth. If that is the case, when is enough for the players to get more? it's evident the owners (who know a thing or two about economics) are not happy with the last business model and see no more venues to squeeze a potential large revenue to share with the players.

If I were an owner and my accountant is telling me that certain business model is unsustainable, not for the now but for an eventual future, you better believe that I'm listening (no matter how good the business is) If I have to lose now to earn more in the future, I buckle up and take care of my business before it's too late.

 

Well stated. There are two discussions going on here. Some participants are offering what they think might happen and others are reacting with what they want to happen. Both valid topics, but they keep swirling around in the same posts.