by Andrew Brandt
February 27, 02011
On Oscar day, the long-running movie script between the two sides of the NFL labor dispute has reached the next scene, with the drama building towards a crescendo later this week.
Reports have surfaced that the NFLPA is prepared to take the next step from its “Decertification Tour 2010” this fall and actually decertify before the agreement expires on Thursday. And now – with the parties getting back together to, ahem, negotiate on Tuesday -- things may get very interesting.
After seven days of mediation between the NFL and the NFLPA and with plans to report back Tuesday, the hourglass runs out on the existing CBA Thursday night. The NFL is insisting on a claw back from the existing CBA that represents in the neighborhood of $500-$750 million. And the NFL has made it clear to the union that if they cannot make gains from the previous agreement through bargaining this week, they will implement a work stoppage and lock out the players from all NFL business.
With no progress in collective bargaining, the NFLPA has pulled the door back of their cache of ammunition and shown the owners what it hopes to be its trump card: Decertification. As explained when the team votes started in September, this strategy is a legal one. To review succinctly:
As long as there is a collective bargaining unit (the NFLPA) representing the players, players cannot take the dispute with their employer (the NFL) out of the bargaining room and seek relief in court. With a management and labor representative, as now, great deference is given to the bargaining process; judges will simply tell the parties to continue to bargain.
However, if there is no collective bargaining unit, meaning no union, then players are free as individuals to seek an injunction to block a potential lockout and fight any terms of employment in antitrust court as restraints of trade.
And what terms of employment will they be fighting? Whatever management would impose during the period of time where the union has ceased to exist: the Cap, rookie compensation, free agency restrictions, etc. It’s all on the table.
This is how the NFLPA, as a “trade association” rather than a union, made significant gains in 1993 with the first free agent, Reggie White, acting as lead plaintiff in a class action lawsuit. Although the current situation is more about protecting what they have rather than making gains, the premise is the same: the NFLPA and its lawyers feel more equipped to fight the NFL in a court than in a conference room. And history has shown that player gains have come more through litigation than collective bargaining.
The success of the this strategy by former NFLPA leader Gene Upshaw may actually be a hindrance to the NFLPA and leader DeMaurice Smith, however. The NFL will seek to show the National Labor Relations Board (NLRB) that the strategy is just that, a legal maneuver without substance, and therefore a sham to play the leverage game.
The NFLPA has leaked out its plan to start the clock on the Decertification process on Thursday, notably before the present CBA expires. That ensures CBA review by its present overlord, Judge David Doty, whose presence is the source of great irritation to ownership. In fact, some feel that the NFL’s biggest reason for wanting the CBA to expire on Friday is to remove Doty from its jurisdiction.
Will it happen?
This is the next part of the script. The NFL has bared its fangs with preparations for a lockout, and the NFLPA is growling back with the imminent threat of decertification.
Time will tell. Of course, the NFL has anticipated this move, making a prior chess move with an unfair labor practice charge with the NLRB, setting in place their claim that any potential decertification is a sham to be ignored.
In the event the NFLPA proceeds with it decertification strategy and then the NLRB agrees with the NFL, the union will have lost a big part of any leverage it had. However, at least for the near future, if the union takes the step, the Decertification offensive and the “Decertification is a Sham” defense will continue along parallel tracks.
All of this, of course, is assuming there is no agreement between the two sides before Thursday night. Will that happen? I have been a voice in the wilderness holding out hope for an agreement this week, but my flame may be flickering.
Much more to come in what is going to be a crazy week ahead...
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