by Andrew Brandt
March 30, 02011
For every action there is a reaction. With the NFL filing its brief in Brady v. NFL last week -- my primer on that filing is here -- the Players filed its brief to enjoin (block) the lockout on Monday. The filing reflects the animosity between the two sides, with the Players calling the NFL “antitrust recidivists” (not a good thing).
Here’s what you need to know about the Players argument:
Why do Players’ argue that the Court, not the NLRB, should decide this?
The NFL argued that the National Labor Relations Board (NLRB) must first resolve whether the NFLPA’s decertification was in bad faith and a “sham”. The Players contend that the U.S. District Court in Minnesota (the Court) should decide since it requires interpretation of the Stipulation and Settlement Agreement (SSA) from the prior CBA, which falls within the exclusive jurisdiction of the Court.
The Players also urge the Court to not delay in ruling, as the NLRB may never even initiate proceedings or could take (literally) years to decide.
Does the labor exemption – protecting the NFL from antitrust claims – even apply here?
Depends on whom you ask. 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 maintain and show precedent that the labor exemption expires at the exact moment the union decertifies.
How do the Players’ justify their decertification?
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 only bad faith here is from the NFL “lockout insurance” television case, and (2) the intent in decertifying is legally irrelevant. Furthermore, in 1993 the NFLPA recertified as a union at the strong request of the NFL in order to continue the labor exemption.
What about the “sham decertification” argument?
While the NFL argues that the “sham” defense is waived “after the expiration of the CBA,” the Players argue that it occurs “at or after” that time. The Players also point out – and this is news – that they voted to decertify both prior to and after the expiration of the CBA on March 11th.
What about the Norris-LaGuardia Act?
The Players contend the NFL takes an overbroad reading of this Act, which the Court has rejected in the past.
Do the Players believe they will be successful on the merits (i.e., win the case)?
The Players only argue that they only need to establish a “substantial question” as to the merits, which they believe they have done.
What about the “irreparable harm” argument?
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.
What about retired players joining the Players?
ICONEller filed suit to join Brady v. NFL
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.
What are the strengths and weaknesses of the Players’ brief?
Strengths: Unlike the NFL, the Players’ claims are firmly grounded in the Court’s past precedent and quote key language from these decisions (McNeil, Jackson, and White). Unless overruled by higher authority — not the case here — courts are typically deferential to precedent, especially in regard to related matters. The Players also make a valid argument that jurisdiction falls to the Court rather than the NLRB, since they believe an interpretation of the CBA and SSA is required.
Weaknesses: In their interpretation of the “sham” waiver, the Players appear to be parsing words in order to achieve their desired result. While criticizing the NFL for not citing any language in the SSA to support their rationale, the Players merely provide a supplemental declaration from NFLPA general counsel Richard Berthelsen. The evidence here is simply Berthelsen’s recollection of the White settlement and the SSA provisions at issue; an obviously one-sided perspective of what transpired.
The Players’ “irreparable harm” argument appears wanting here 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.
The briefs are in; the stage is set for Courtroom football to proceed next Wednesday. The ruling from Judge Susan Nelson will set the stage for the rest of the offseason of litigation and/or settlement negotiations. As strange as it may sound, the NFL’s short-term future rests in her judicial hands.
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