by Andrew Brandt
March 23, 02011
Now that the NFLPA and the NFL have had their annual meetings to vent about the other side and their tactics, we are at the same place we were when talks broke off on March 11th.
The NFL wants to negotiate/mediate more with the union. The NFLPA says they are no longer a union and the NFL can talk to their lawyers, which they won’t, since they don’t believe the NFLPA is not still a union. Confused?
Well, for some clarity, let’s go to the lawsuit (yes, I said that). Here is my earlier guide to Brady v. NFL. In advance of the April 6th Preliminary Injunction (PI) hearing where the Players will attempt to enjoin (stop) the lockout, the NFL submitted their supporting brief on Monday.
Here’s a primer on the NFL’s argument to deny the Players the PI:
What are the NFL’s main arguments?
1. The National Labor Relations Board (NLRB) must resolve the NFL’s unfair labor practice charge prior to the U.S. District Court in Minnesota (the Court) making a ruling;
2. The Players do not meet the legal standard for the issuance of a preliminary injunction; and
3. The Norris-LaGuardia Act (the Act) prevents the U.S. District Court in Minnesota (the Court) from issuing an injunction to block either lockouts or strikes in cases arising from labor disputes, as here
What does this mean?
One argument is jurisdictional, arguing the case should be in front of the NLRB rather than the Court. The other argument is procedural, as the NFL argues that the NFLPA’s decertification was a “flip of a switch” that cannot immediately turn valid and legal collective bargaining tools — such as the lockout — into an instant antitrust violation.
Key issue: Court or NLRB?
The NFL claims that the unfair labor practice charge it filed with the NLRB on February 14, and amended last week, is a pending matter whose resolution is needed before Brady v. NFL can proceed. The NLRB will determine whether the NFLPA’s decertification was made in good faith or done for purely tactical reasons.
The NFL is asking the Court to defer to the NLRB, which has substantial specialized knowledge and expertise in labor matters.
The NFL also argues about incompatible results. If the Court were to block the lockout, what happens if the NLRB later determines that the NFLPA’s decertification was illegitimate? Whose ruling takes precedence? Arguably, the possibility of contradictory results would present a legal challenge.
ICONThe NFL argues the strategy of the Reggie White case cannot be copied.
Decertification a legal strategy, not in good faith
The NFL points out the past as instructive on the NFLPA’s present strategy. From 1987-1992, the NFLPA decertified and antitrust lawsuits followed (McNeil v. NFL, White v. NFL), leading to settlement, re-formation of the NFLPA as a union, and a new CBA embodying the settlement. The NFL claims that the NFLPA seeks to repeat this cycle again in an effort to secure bargaining leverage.
The NFL lists evidence demonstrating that the NFLPA had long been planning this tactical maneuver, not one in good faith. They present a catalogue of quotes from NFLPA representatives including: Kevin Mawae, Derrick Mason, Vonnie Holliday, Jeff Saturday, Mike Vrabel, and DeMaurice Smith.
What is the Norris-LaGuardia Act and how does it apply here?
The Act, known originally as the “Anti-Injunction Bill,” provides protections against injunctions during labor disputes. The NFL has now turned the Act for its advantage, asserting that it protects both employee strikes and employer lockouts.
The NFL argues the Act applies whether the NFLPA is a union or a trade association, as it applies to disputes between employers and “employees or associations of employees.” Since Brady v. NFL derives from a labor dispute, the NFL claims the Act expressly prevents the Court from issuing the injunction.
What is the legal standard for granting a preliminary injunction?
Players primarily need to show (1) that they will likely prevail on the merits (win the case), and (2) they will suffer irreparable harm without the injunction.
As to the merits, the NFL points to key language in the case Brown v. Pro Football stating that the nonstatutory labor exemption – protecting them from antitrust claims – continues to apply “sufficiently distant in time and in circumstances” beyond the collective bargaining process. Alternatively, this is a matter that requires the resolution of the NLRB claim first.
As to the irreparable harm argument, the NFL argues that Players’ are asking for monetary damages, eliminating the need for an injunction. The NFL also asserts that during a lockout, there is no risk to players of injury or “wear and tear” on their bodies.
What are the strengths and weaknesses of the NFL’s brief?
Strengths: The NFL’s legal dream team’s claims are grounded in federal labor law and emphasize the underlying policy favoring collective bargaining over antitrust. The incompatibility argument is persuasive in allowing the NLRB determination to take precedence over the Court, or at least defer to its schedule. The brief also makes a strong argument that the Players' harm is not immediate and irreparable as we sit here in March.
Weaknesses: The Norris-Laguardia Act’s original purpose was to protect union employees from striking, not to protect employers from locking out. And the NLRB process is painfully slow; the Court may weigh that in light of the football season ahead.
In sum, the NFL made some compelling arguments. I am sure the Players' side -- their brief is due next Monday -- will as well. Ultimately it will come down to the feelings of one Judge Susan Nelson.
Again, welcome to the brave new world of courtroom football…
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