The multibillion-dollar labor dispute between NFL owners and the NFL Players Association will shift to federal court in Minnesota on Wednesday and a subsequent ruling might provide leverage to end the stalemate.
In interviews with six legal and business experts, it would appear that legal precedent, if followed, could give that leverage to the players and provide a quicker return to the business of football.
“Both sides have compelling arguments,” said Andrew Brandt, an attorney and ESPN’s NFL business analyst. “The [players] do have [legal] precedent on their side from the same court in Minnesota from 20 years ago. On the owners’ side, they make a compelling argument that the standard of proof for lifting the lockout — irreparable harm — has not been met.”
The ruling on the NFLPA’s motion for an injunction by Judge Susan Nelson may help return players to the field. Or her decision could further muddle the situation and leave fans uncertain whether they will be watching their favorite NFL stars in September.
The NFLPA decertified as a union on March 11; the NFL followed by locking out the players.
“We’re going to have a very good idea of who has the upper hand in the negotiations,” said David Scupp, an antitrust attorney with Constantine Cannon of New York. “If the players win this preliminary injunction and it’s upheld on appeal, we are going to have a season. If the players lose, they will be under a tremendous amount of financial pressure to reach a deal with the league to end the lockout and start getting their paychecks.”
Nelson, the presiding judge, is the wild card.
“It’s difficult to know what a new judge on the federal district court bench is going to do,” said Susan Tose Spencer, an attorney, former NFL executive and minority owner with the Philadelphia Eagles. “Because if you have a new judge, they don’t have any cases behind them. You don’t know what they’ve decided.”
Spencer believes that Nelson, who was appointed by President Barack Obama, won’t try to establish new law. She said most women in a tenuous position will take a conservative approach.
Spencer was with the Eagles in 1982 when there was an NFL labor dispute. Leonard Tose, her father, sold the Eagles in 1985, so she wasn’t involved with the ’87 labor stoppage that resulted in replacement players for a few games.
“There are some parallels, but there are some glaring non-parallels,” Spencer said. “In ’82, the lockout was a lockout. We locked the players out. ... They didn’t agree to the conditions of the collective bargaining agreement and we locked them out.”
In 1982, there was no decertification nor any attempts to have antitrust law apply. Spencer recalls contentious meetings involving lawyers on both sides, but somehow a settlement was reached.
If the ruling results in an extension of the lockout, the owners are better situated to withstand an extended labor stoppage. In 1982, Spencer said, the players backed down, indicating they wanted to play more than hold out for more revenue.
The NFLPA has a strike fund that pays $65,000 per player, but the association can’t match the owners’ deeper pockets.
“My clients are in position [to miss a year], but, if you look at the league as a whole, I would bet that there probably are not a lot of guys in position to make it through a season,” said Jason Pace, a financial planner with Morgan Stanley Smith Barney in Atlanta, who represents several players.
There is support in the legal community for both sides. Matthew Cantor was on the legal team that won the largest antitrust settlement in U.S. history in a case against Visa and MasterCard, and he doesn’t think the players will win their motion. He believes the court is going to have trouble finding that the players have suffered irreparable harm.
“I don’t think the courts will interfere with the lockout,” Cantor said. “If that is what the court does, and, if I’m right, I think the players will cease their lawsuit and get back to the negotiating table in the form of a labor union and have labor discussions.”
Cantor believes pro football will be played this season. He concedes the season could start late, and games could be lost, but said the stakes are too high to lose an entire season.
It is possible that Nelson could decide that the decertification is a sham and that this matter really belongs in front of the National Labor Relations Board (NLRB), which helped baseball settle its labor strife in the 1990s.
“They are saying that the agreement does provide for decertification after the expiration of the contract,” said William B. Gould, professor emeritus at Stanford Law School and former NLRB chairman during the 1994-95 baseball strike. “They are saying that because the players decertified prior to the expiration of the contract that it is basically a sham.”
Gould doesn’t believe the NLRB’s general counsel is ready to get involved.
“They do have the right to decertify both prior and subsequent to the expiration of the contract,” Gould said. “The owners have simply said that this contract clause only applies to a post-contract decertification. I think that’s clearly wrong.”
Nelson said Monday that she will consolidate cases for current players and retired players. The two groups had filed similar antitrust lawsuits against the NFL. Retirees say the lockout could jeopardize retirement benefits subsidized by the league.
Nelson’s eventual ruling likely will be appealed. The legal drama then would shift to the U.S. Court of Appeals for the Eighth Circuit in St. Louis.
The Eighth Circuit is a conservative court, and if the owners are convincing in their argument that the labor exemption still applies, that this is a matter of labor law, the union’s position could be damaged, Gould said.
The real issue can get lost in all of the legal maneuvering. And a trial is hardly a sure thing.
“This is a dispute over money between the two parties,” Brandt said. “There are a lot of people that are affected one way or another. The priority for ownership is to perfect their business model and the priority for the players is to get the most that they can.
“It’s hard to believe that this thing will go to trial.”
NFL LABOR EXPERTS
Susan Tose Spencer: An attorney and former general manager and minority owner of the Philadelphia Eagles. She was with the Eagles during the NFL Lockout in 1982.
Matthew Cantor: An attorney and partner at Constantine Cannon, a New York law firm. He was on the legal team that won the largest antitrust settlement in U.S. history, a $3.4 billion settlement.
William B. Gould: Professor emeritus at Stanford Law School. Gould was chairman of the National Labor Relations Board during the 1994-95 baseball strike.
Jason Pace: A certified financial planner and vice president of Morgan Stanley Smith Barney in Atlanta. He has been a financial advisor for 13 years and has a roster of NFL-employed clientele.
Andrew Brandt: An attorney and former executive with the Green Bay Packers. He’s currently the NFL business analyst for ESPN, a lecturer in sports business at The Wharton School and president of the website nationalfootballpost.com
David Scupp: An attorney at Constantine Cannon who has written on labor and antitrust issues.
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