NFL players head into the final day of negotiations with owners holding a 3-0 lead. (The current Collective Bargaining Agreement expires at 11:59 pm ET Thursday night.)
On Tuesday, US District Court Judge David Doty overruled a Feb. 1 decision to reject the NFLPA’s request that $4 billion in 2011 payments from networks to the league be placed in escrow if there is a lockout. Let me translate that from legalese to English. Back in 2008 the NFL owners made deals with the networks that would bring $4 billion in revenue in 2011 even if games weren’t played. Simply put, this would give the owners a “war chest” for a work stoppage while the players would be left high and dry once their paychecks stopped.
Doty’s ruling means, in effect, that this is unfair and since the players are responsible for producing that revenue, the NFL has to share it per the terms of the CBA – which probably means he will order the money put in escrow for future distribution to union members.
Okay, so NFL management probably won’t be able to starve the players out as they have in previous work stoppages. So what’s next?
Well, by the time you read this it’s possible that the two sides could have agreed on an extension of the Collective Bargaining Agreement and talks can continue, but that won’t work unless one side is willing to budge on one of several key issues – and right now, that doesn’t seem likely.
Another definite possibility was suggested yesterday by Judy Battista in the New York Times. In fact, Battista thinks it will happen: “The union is planning to effectively dissolve itself.
“Twenty-two years ago, a similar decision by the union allowed individual players to sue the league, and they won a momentous victory – the right to free agency that they still enjoy.”
Why did that happen? To take an enormously complex issue and simplify without distorting it, it comes to this: Nearly every time a players union (including, for decades, the baseball players union when it petitioned a court for the right of players to be free agents), the courts have responded, in one way or another, “That’s a matter for collective bargaining.” But you can’t bargain collectively if you’re not a union, so decertification could open the door to hundreds of individual lawsuits, something the NFL desperately does not want to deal with.
Decertification also could possibly open the door to a lawsuit relative to the NFL’s relative freedom for antitrust laws, something it very much does not want to see.
So, though it may come as a surprise to many, the NFL owners don’t want to crush the union, they simply want it to be a nice amicable company union like the one Gene Upshaw headed for more than 25 years. But new union head DeMaurice Smith is no Gene Upshaw.
There are simply too many matters – health care for current and retired players, use of the NFL logo in commercials, pensions, etc. – covered in the CBA that the teams don’t want to deal with on an individual basis; chaos would ensue.
For that matter, the NFLPA would also prefer not to decertify, if only because it would might make it difficult to stay in touch with around 2,000 players. But union head DeMaurice Smith doesn’t choose to decertify before the CBA is up tomorrow night – and the players already gave him the authority to do so in a vote last fall – then the players must wait six month, until September, to make the move.
By the way, the NFL owners have Judge Doty’s Tuesday ruling already has the NFL owners accusing him of “bias” towards the players; they have called the players’ talk of decertification “a sham”
Lester Munson, one of the best labor analysts in sportswriting, addresses this issue on ESPN.com. The NFL owners are “hoping that Doty or judges in a higher court might somehow fall for their arguments, although a number of Doty’s earlier rulings have been in favor of the players, these rulings were not the result of any bias. They were based on the facts and the law, and they were unfavorable to the owners because the owners were wrong … Doty is one of the finest jurists I have encountered. He is fair, equitable, and just, and he gives both sides ample opportunity to state their positions before he makes a ruling.”
BTW, since Doty looks like he is going to be an increasingly big part of the picture, it might be worth mentioning that he is a Reagan appointee.