NFL's labor battle could turn on injunction request

Owners will gain leverage if their lockout strategy is upheld

March 15, 2011|By Ken Murray, The Baltimore Sun

When NFL players waged a 24-day strike at the start of the 1987 season, Phillip Closius gained front-row insight as a law school professor and player agent.

He saw the players' movement collapse in September when Pro Bowl stars like Joe Montana and Tony Dorsett crossed the picket line. He saw the players routed by the owners with replacement players. He saw the face of desperation.

"I know what tensions are like on players when they start losing paychecks," Closius said Tuesday. "That's usually when players start putting pressure on the reps, [saying] 'Hey, get this done.' Ultimately, that's what gets this done."

Until Saturday, that was the NFL's last work stoppage. Now, it's the owners who are dissatisfied with the league's economic system. Twenty-four years later, they have locked out the players, who are headed to federal court in an effort to maintain something close to status quo.

If decertification sent the labor fight to another level, the decision on the NFLPA's request for an injunction to block the lockout will likely determine which side has the early advantage. And most legal voices today say that gaining an injunction could be very difficult.

"A preliminary injunction is the biggest issue from a legal standpoint," said Matthew Cantor, a partner in the law firm of Constantine Cannon in New York. "Section I of the Sherman Act prohibits conspiracies that unreasonably restrain free trade. … I'm not sure the court will ultimately decide what the owners are doing is unreasonable restraint."

U.S. District Judge Susan Richard Nelson — and not Judge David Doty, who has overseen the NFL's collective bargaining agreement since the early 1990s — will hear arguments on the request for injunction in her Minneapolis courtroom on April 6.

It is the fulcrum on which the players' class-action lawsuit will pivot. Without an injunction, the players lose much of their leverage in negotiating a settlement with the owners. If the lockout holds, players could easily go into late August with the same desperation that Closius first saw as a young agent.

Closius, now the dean of the University of Baltimore School of Law, said he learned three things from watching player strikes in both 1982 and 1987.

"One, the NFL owners are tough," he said. "They're the toughest sports group to deal with. You know they are going to stay tough. Two, they always lose antitrust lawsuits. And three, the players collapse."

Winning an antitrust suit against the owners will take years — at least three — and will involve numerous appeals. That's where the owners have the advantage.

"Understand the NFL mindset," he said. "The NFL doesn't have to win, they just have to delay. A lot of big companies have this strategy. If you're weak on facts, just run this out as long as you can and see if the other side can afford to wait.

"My best projection is the NFL will ultimately lose the antitrust lawsuit, but it doesn't matter because they'll probably delay long enough that the union will make concessions and produce a settlement agreement. … I don't know if the players have the stamina to stay out three years. I don't know if they have the stamina to stay out three games."

Getting the injunction requires the players to prove they have suffered irreparable harm by the NFL lockout.

Susan Tose Spencer, a former Philadelphia Eagles vice president and legal counsel, was involved in the 1982 negotiations, and she thinks the players' dependency on Doty is misguided.

"Their whole strategy of decertification is based on getting Judge Doty, who has been very kind to the players," Spencer said. "Well, what he probably never told his players is, that's not a slam dunk. When you have a case in federal court, you don't get to pick your judge. It's a roll of the dice. Whoever is up next gets your case.

"Now the judge can then decide to defer to Doty, but I don't think this judge [Nelson] will. If you want to have a higher profile, you take an NFL case. So their whole strategy was, 'We'll get the injunction so they can't lock us out.' Well, what happens if they don't get the injunction? I don't think a judge is going to give it to them."

Cantor said he thinks the injunction will be denied and the two sides eventually will hammer out an agreement. When that happens is the question.

"Whether it's a full NFL season or half an NFL season, I don't know," Cantor said. "I think it's extremely unlikely there will not be an NFL season in 2011. There's too much money at stake and too much economic pressure all around for these entities not to hold hands and play nicely."

Baltimore Sun reporter Kevin Van Valkenburg contributed to this article.

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