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Decertification: part of a plan

Strategic weapon probably not to be used Andrew Brandt

Print This September 12, 2010, 12:20 PM EST

News came yesterday that the Saints were the first of the 32 teams to authorize the NFL Players Association to decertify itself as a union and allow for individual players to become litigants against the NFL in antitrust court.

Cliff notes version of labor and antitrust law as it relates here: labor law favors collective bargaining between employer groups (NFL owners) and employee groups (NFL players). In the event these groups have agreed to a collectively bargained agreement that governs the operation of their industry (CBA), courts are loath to insert themselves into any disputes.

In other words, in the event the NFLPA were to dispute restraints imposed by the NFL – free agency restrictions, the college draft, practice squads, salary caps, etc. – the league would prevail in these disputes based on the existence of a mutually-agreed-upon CBA. Taken to its logical conclusion, courts have ruled – the seminal case being Powell v. NFL in the Eight Circuit Court of Appeals -- that as long as the NFL players have a collective bargaining agent (union), they have no recourse in antitrust court to sue the NFL.

Faced with this dead end twenty years ago, the late Gene Upshaw chose a different path for the NFLPA. With the NFL allowed to impose its restraints through an impasse in bargaining and seemingly free to impose their system on the players as long as the players had a collective bargaining agent (union), Upshaw decided to have the players become antitrust litigants rather than union members. The union decertified, negating its existence as a collective bargaining agent, and allowing players to sue the NFL about the restraints in place.

Players thus became plaintiffs, with names such as Freeman McNeil and Reggie White in lead roles. The 1993 Reggie White v. NFL case eventually settled and that settlement became the basis for the CBA that has – through repeated extensions -- governed the NFL and its players for the last seventeen years.

The union breathed a heavy sigh of relief in May when the American Needle decision from the United States Supreme Court did not award a sweeping antitrust exemption for the league, a decision that would have wiped out the decertification option for the union.

Would the NFLPA decertify again? Certainly players will vote for the option, as a procedural matter that the Saints kicked off, if only to have that piece of ammunition available. As to whether new leader DeMaurice Smith and the union will use it, I doubt it. Like everything else going on now, it is simply a bullet in the gun in the arsenal that the union has available, although a bullet that the union really does not want to use.

As with everything going on with the stagnant labor negotiations that will be front and center over the coming months, it’s all about negotiations, both towards a new CBA and towards winning the hearts and minds of the fans and media.

Follow me on Twitter at adbrandt.

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