Published on: April 18, 2011

My passion is Football, my practice is Litigation.  The NFL has caused my passion to collide with my practice.  Now my upcoming football season (and Patriots season tickets and tailgating) is in jeopardy.  My Fantasy Football league is in chaos.  So far I have contemplated adjusting my Fantasy schedule to have non-divisional games played first, so that in the event some games are canceled, my Fantasy Football league will have a balanced schedule.  Suggestions from die hard fantasy footballers are welcome.  I wonder if the NFL will similarly adjust its schedule by having all non-conference games for the first 4 weeks of the season.  If they do, it will be a strong signal of cancelled games this fall.

The NFL lockout is in high stakes litigation with the Players seeking an Injunction against the owners from “locking them out”.  The briefs are in and the arguments have been made in Brady v. NFL, and a decision will be rendered if the parties cannot settle (they are currently in Court Ordered mediation).  Since the issues are so important to me, I felt it my obligation to learn some of the nuances of the litigation and report back.  Hey, knowledge is power, you never know if you are going to run into a Player or Bob Kraft at some fundraiser and will need to talk about this stuff, plus I need to know it in case I decide to lock out any of my fellow fantasy football players (my wife has locked me out from holding fantasy football drafts at my house—maybe I need an injunction).  The arguments on whether or not to issue the injunction are interesting both from a lawyer’s and fan’s perspective.  Unfortunately, as we all know, once any issue heads into litigation, the litigation usually morphs from simple (lockout or no lockout) to complex legal arguments and counterarguments.  This case is no different.  Some of the main issues before Judge Susan Nelson in the United States District Court for Minnesota are:

Who Should Decide the Player’s Case?  The Court or the National Labor Relations Board?

Surprise, surprise, the lawyers, players and owners can’t even agree who should decide their dispute.  Just like Football, venue and home field can be equally important when it comes to the law.  The NFL contends that the Player’s lawsuit was pre-mature and that the National Labor Relations Board (NLRB) must first resolve whether the NFLPA’s decertification of the player’s union was in bad faith and/or a “sham”.  The Players contend that the Court should decide the case because it requires interpretation of a Settlement Agreement the parties reached in their prior Collective Bargaining Agreement, which falls within the exclusive jurisdiction of the Court.

The Players want to avoid the NLRB, as it is up to the NLRB to initiate proceedings and the process is slow and could take years to decide.  NFL wants to avoid the Court, because, lets face it, the NFL is the equivalent of the Detroit Lions when it goes to Court.

Does the NFL labor exemption – protecting It from antitrust claims such as this one – even apply here?

The NFL claims that the labor exemption continues “sufficiently distant in time and in circumstances” beyond the collective bargaining process, which ended March 11th.  The Players counter that the anti-trust exemption expires at the exact moment the union decertified.

Is Decertification From the Union Justified?

The Players assert that employees have the right to dissolve their union, and an employer cannot compel its employees to remain unionized.  The Players acknowledge risks in decertifying:  “By deunionizing, the Players gave up their labor law rights, including striking, collectively bargaining, regulating agents, and having union representation in grievances and benefit determinations.”

The Players also deny any bad faith in decertifying, saying that (1) the NFL is the party that acted in bad faith by attempting to get “lockout insurance” from the television networks, which would pay the owners for one year’s worth of television money even if no games were played (the owners lost that case), and (2) that the intent in decertifying is legally irrelevant.  Furthermore, the Players contend that in 1993 the NFLPA recertified (after having previously decertified) as a Union at the strong request of the NFL in order to continue the labor/anti-trust exemption.

The “sham decertification” argument?

The NFL argues that any defenses to the “sham” argument are waived “after the expiration of the CBA”, which occurred on March 11, 2011.  The Players argue that they can defend the “sham” argument “at or after” the CBA expires.  The Players also maintain that they voted to decertify both prior to and after the expiration of the CBA, which would render the NFL’s hypertechnical argument on this point moot.

Can the Players Show Irreparable Harm Necessary to Obtain an Injunction Against the Owners Form Locking Them Out?

Most people know that in order to obtain an injunction, the moving party has to convince the Court they will suffer irreparable harm that cannot be compensated by money damages.  This is often hard to do.  In this case, the Players not only seek an injunction but money damages.  So the owners argue no injunction should issue as money damages are adequate to compensate the Players, if they ultimately win their case.

The Players argue that no amount of monetary damages can adequately compensate players for “lost competitive opportunities.”  The Players maintain that the “offseason is the time when Players compete to try to find a team, make a roster, establish themselves as starting players, demonstrate that they can overcome injuries, or otherwise prove themselves.  To do this, they need the opportunity to sign with the right team, begin off-season workouts, learn the team’s system, and compete before training camp begins.”  Without an injunction blocking the lockout, the Players argue it will be impossible to quantify the value of these lost opportunities.

The Players’ “irreparable harm” is probably weak in early April.  In the end, the Court will have to balance the alleged lost competitive opportunities the Players are suffering against the (1) reduced injury risk and wear and tear the NFL lockout currently affords, (2) the lack of urgency five months before the season begins, and (3) the fact that Brady v. NFL requests monetary damages that may address any harm to players.

What about retired players joining the Players?

Carl Eller is now leading a complaint to join the litigation as a class representing all former players.  They argue that if the lockout continues until next March 11 – one year — their retirement benefits will cease. This case may be combined with Brady v. NFL.

So maybe now you can follow the talking heads on NFL Network on this complicated labor issue.  These certainly are complicated times. 

In my research for this article, I found a copy of a standard NFL contract for Green Bay Packers in 1944, which can be accessed via the attached link.  Clearly simpler (though not necessarily better) times.  See you in the Fall (maybe).