NFL players still have big card to play

Decertification looms if labor negotiations fail

March 08, 2011|By Ken Murray, The Baltimore Sun

Decertification hangs over NFL labor negotiations like an anvil.

In its brief but illustrious history in pro football, decertification was the wild-card strategy that brought free agency to the players in 1992 after a three-year court battle against the owners.

Now it is the fall-back position for the NFL Players Association if — when? — negotiations with the league fail to yield a new collective bargaining agreement.

Whether it is enough to ensure another union victory for the players is another matter, however.

Gary Roberts, dean of the Indiana University School of Law in Indianapolis and an expert on NFL labor disputes, said that decertification — a legal process where the players' union ceases to be — is not necessarily the negotiating hammer some believe it to be.

"My own instinct is that it's not as big a threat as some players and people on that side think it is," Robert said in a telephone interview Tuesday. "Only because I don't think anybody thinks the two sides would litigate for two or three years, which is what it would take. To shut down the NFL for three years while they litigate is inconceivable."

DeMaurice Smith, executive director of the NFLPA, is poised to start the decertification clock once current talks break down, perhaps as soon as Friday when the extension expires. Both sides met with mediator George H. Cohen Tuesday in Washington for the 13th day of negotiations.

There has been limited progress, apparently. The union was permitted to review financial information the owners have previously made unavailable. But Scott Fujita, a linebacker with the Cleveland Browns and a member of the union's executive committee, said it "hasn't been sufficient."

Fujita told the Associated Press the NFLPA has hired an international investment bank to help study the numbers provided by the league.

"It's tough when you've got basically just a brief summary or a snapshot of all the information," he said. "That doesn't satisfy what any competent business person would want to see."

Short of an agreement or another extension at the end of the week, the union will decertify, then begin the legal process with an antitrust lawsuit against the owners.

William B. Gould, professor emeritus at Stanford Law School and former chairman of the National Labor Relations Board, described decertification as "the only game in town for the union."

"It is the ultimate weapon," Gould said. "They have to have that in reserve because … you can get damages, treble damages and injunctive relief pretty quickly sometimes."

But even Gould said that decertifying was no guarantee of success in the courts.

"By decertifying, there's enormous expense and difficulty," he said. "You're staring into this abyss, you don't know how far this is going to play out."

If the owners lock out the players, the union likely will seek an injunction in Minneapolis, where U.S. District Judge David Doty presides. Doty, who oversaw the free agency era with the last CBA, last week agreed with the union that the NFL violated terms of that CBA when it negotiated TV contracts that would have given money to the owners during a lockout.

But Roberts strongly suggests that locking out players would not be a violation of antitrust law.

"Where I sit, I just don't see decertification and the filing of an antitrust suit to be that big of a threat to the owners — unless the players could get Judge Doty to find that just shutting down wasn't an antitrust violation and force them to start back up," Roberts said.

Even if he did, Roberts said he would expect the NFL to appeal the injunction to the 8th Circuit Court, which has overruled Doty in the past and "probably would reverse" him again.

Roberts also said he doesn't think a lockout now would be as beneficial as a lockout in July.

In his former role with the NLRB, Gould got a temporary injunction from then federal-district court judge — and now Supreme Court Judge — Sonia Sotomayor that ended baseball's strike of 1994-95.

Gould said the players have the most to lose in these negotiations because of the short-term nature of NFL careers.

"For the players, it's now or never," he said. "You're talking about seniority that is three or four years, and for some of these guys, less than that. A lot of players will play three-, five-, 10-more years, but a lot of guys will only play two years. So … this [contract] won't do anything for them.

"Right now, I think the union has the most pressure, primarily because of that. The big pressure the owners have is antitrust, the prospect of that. Both sides have weapons that are formidable, that could really hurt each other. But I think this is going to resolve itself because there's just too much money here."

Roberts agrees. He said he doesn't expect the NFL to lose games or the season because of a work stoppage.

"We're not going to lose the season," he said. "I'm 99 percent confident of that. The issue is, how close are they going to come before the two sides feel they have to make big compromises? I don't feel it will come before August or September. The two sides would be insane to lose the football season."

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