As we enter a brave new world of Courtroom Football and move into uncharted territory of the NFL I will try to answer a few of the scores of questions about what happened and what’s ahead.
Why did negotiations on a new CBA break down?
This negotiation lacked any sense of trust or personal relationship. It left both sides feeling that this was never really a negotiation at all. The sneering from both sides continues.
What could the NFL have done differently?
The NFL’s initial offer to the NFLPA to reduce the players’ share $1 billion, or 18% below the previous agreement hovered over this negotiation like a dark cloud.
Although the owners made significant moves in the last hours of the talks, it was too late. The players were full on with the disrespect card. In addition to the lowball offer, the players felt ignored, talked down to, and were left waiting throughout the mediation process.
Negotiations are business, but these became personal. And the talks never recovered from that.
What could the NFLPA have done differently?
ICONSmith rallied the players with passion.
DeMaurice Smith is a skillful and passionate orator ready to take on NFL owners. However, Smith could have still been unyielding without being combative. As the saying goes: “Keep your friends close and your enemies closer”. NFL officials were saying that Smith “digs litigation,” a mocking comment that was unfortunate to hear about the leader of the league’s most important partner.
What was the owners’ last best offer on the revenue split?
The last-minute offer would have put the 2011 Salary Cap at a figure of $141 million per team. That sounds like a nice increase from the $128 million 2009 Cap, but the “Team Salary” portion of the offer was only $114 million. The other $27 million was in the form of benefits. The players’ wanted to at least equal the $128 million 2009 Cap number in negotiable Cap dollars.
Ok, now we’re in a new world. What’s next?
The NFL will follow up its February 14 filing with the National Labor Relations Board (NLRB) that the NFLPA’s decertification is a “sham” and not legitimate. A hearing will be scheduled. A ruling for the NFL here would be considerable, as if the union still exists, there can be no antitrust suit because there will still be a union.
Sounds simple, no?
No, this is where it gets complicated.
According to the previous CBA’s Stipulation and Settlement Agreement (SSA), embedded in the CBA, the NFL waived its right to challenge decertification as a “sham”. However – stay with me here – that waiver applies “after the expiration of the CBA”. Although it has now expired, they filed the unfair labor practice with the NLRB weeks ago.
It will be interesting to see which trumps which – the NLRB or the prior CBA’s SSA — in determining whether this was a legitimate decertification.
What about the lockout?
Along with the complaint of Brady v. NFL, the players will file an ancillary motion for a preliminary injunction to block the lockout. Speaking of which,
Why is Tom Brady’s name the first name on the lawsuit against the NFL?
For effect. It bears no legal significance for now. However, the eventual resolution of a new CBA will be the settlement of Brady v. NFL, just as the embodiment of the 1993 CBA was the settlement of Reggie White v. NFL.
Will Judge Doty be hearing this case?
The case has been assigned to U.S. District judge Patrick Schiltz. In the interests of judicial economy, it is common for the case to be reassigned to judges more familiar with the area of law at issue. That, of course, would point to Doty, the pebble in the shoe of NFL owners. However, according to Daniel Kaplan of Sports Business Journal, the case has been assigned to Judge Susan Nelson, who also has some experience in the matter of the rights of football players. She presided over Dryer v. NFL, a case dealing with compensation owed to former players for unauthorized use of their identities.
It is unclear at this time whether the players will try to do what they can to get in front of Doty.
What is the basis of this lawsuit?
I will be breaking it down in detail in coming days. In a nutshell, the players argue that the following are unreasonable restraints of trade that should result in relief to the players in the form of treble (triple) damages and – in the case of the lockout – an injunction:
- The lockout
- The Draft and its Entering Player Pool (Rookie Salary Cap)
- The Salary Cap
- Free agency restrictions
- The Franchise and Transition tags
What is the first step?
The first question will be whether the NFLPA is still a union or not. The determination there — by the NLRB and then the court and perhaps an appeal – will set the stage for this legal drama.
And will there be a lockout?
Depending on the outcome of the decertification issue, there will also be a hearing to determine whether to grant an injunction to stop the lockout. That hearing is now scheduled for April 6 in front of Judge Nelson.
The players will argue that they will suffer irreparable and immediate harm from a lockout. Their argument is that every day that passes without an opportunity to prepare and prove themselves as football players is taking away from an already short career opportunity they will have.
What happens if the judge blocks the lockout?
The NFL will appeal to the U.S. Court of Appeals for the 8th Circuit. It is a question as to whether during the appeal that the lockout will continue or not. If not, or if the appeal confirms the end of the lockout, the NFL will likely be required to impose rules and open their business while the rest of the litigation proceeds. They would likely impose the 2010 work rules – no Salary Cap, six years to free agency, 30% rule, etc. Since the players’ are on record as saying they would gladly continue under the current system, those rules should be in place while the case and/or settlement discussions proceed.
What happens if the judge allows the lockout?
We are where we are. No NFL business between the teams and its players will happen. No signings, trades, workouts, treatments, contact, etc. There will be a Draft, but draft picks will cool their heels with no ability to sign contracts.
I know, this is all uncharted territory. No worries, though, I’ll hold your hand every step of the way. Step on in…
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