Hey everybody. Not sure how interested any one is in the NFL Labor stuff but I'm a law student and run the Sports and Entertainment Law Society blog at William and Mary. My most recent post is below if you're interested. (I swear it's not self-promotion, I just want to hear some commentary on the issue because my take seems to be different from a lot of others.) Thanks everybody
Okay, so it’s finals week here and I really ought to be studying contracts, but I had to quickly react to the recent developments in the NFL labor dispute. I promise I’ll make it brief.
As you no doubt have heard by now, Federal District judge Susan Richard Nelson found for the players and granted an injunction, ending the lockout at least temporarily. As we speak she is considering whether to issue a stay (which would basically pause the injunction while the 8th Circuit hears the case on expedited appeal.) She isn’t going to grant it, but the 8th Circuit itself might. We probably won’t know for sure until after the draft tomorrow night but that’s not important right now.
What is important is this is a pretty significant ruling. It basically validated the NFLPA’s strategy of de-certification and crushed the owner’s lockout tactic. It also increases the chances we will see a full NFL season next year. Finally, it makes the prospect of a full-blown antitrust suit a real possibility, whereas I would have argued it wasn’t a few days ago.
Here’s my reaction. First, as a football fan, it’s good that we are more likely to have a full season. I love the draft and all the other offseason stuff: trades, free agency, etc. Second, as a law student, it is really exciting to watch the law play out on my favorite TV channel. Now I can watch ESPN and not feel as guilty about not studying.
On the other hand though, as someone who follows, thinks about and one day hopes to work in the business of professional sports, this ruling is really concerning. I’m sure most people aren’t feeling sympathy for the NFL and their billionaire owners, and I get that, but if the artist formerly known as the NFLPA keeps winning these legal battles, the NFL will cease to exist as we know it.
Let’s say the dispute ends up in a antitrust case, which wouldn’t begin until after the 2011 season is over at the earliest. The NFL will almost assuredly lose that case. Many of its policies are in violation of antitrust law: the draft, free agency, the salary cap and even the schedule itself are technically illegal. But because these rules are collectively bargained for, there was no problem. Except as it stands today, they are no longer collectively bargained for. If the NFL lockout remains suspended, the league would play under last year’s rules that include all those things mentioned above, but not under any CBA.
So basically the players are arguing for a completely different league. One with no salary cap where the Cowboys, Redskins and other big market clubs would sign every good rookie. A league where the Green Bay Packers are the equivalent of the Pittsburgh Pirates. What about Kansas City, a team with virtually no luxury suites and “corporate accommodations?” They won’t be able to complete. A league where the NFL wouldn’t be able to cap the number of regular season games. The Bears could call up the Vikings and say let’s play on Tuesday. Does anyone really want that? It would be a fundamental departure
I am the first one to point out that football and all other professional sports are businesses. But at the same time, the NFL is not like the steel companies in 1890 when the Sherman Antitrust Act was passed. Professional sports are by their nature unique. They must have different rules. That’s why we need collective bargaining. Everyone complains about how baseball doesn’t have enough competitive balance. Everyone loves the NFL because their favorite team is one good draft or free agency class away from being a contender.
Yet, now the players are trying to destroy that. And for what? Because the owners won’t give an extra 3% of revenues? As a future lawyer, I probably shouldn’t say this, but I don’t believe we should let the NFLPA lawyers guide the future of this league. I completely agree with Roger Goodell on this one, and not just because we went to the same college.
In the end, there are no good or bad guys. Players, owners alike are all looking out for their best interests and that is how capitalist society works. But that is exactly why we have the courts: to mediate these type of disputes and help achieve a mutually beneficial solution.
The essential holding of yesterday’s ruling was that union de-certification was not a sham and that players are irreparably harmed by a lockout. (Both are hard to explain – first, it was clearly a sham; second, players never get paid in the offseason, they get game checks for the regular season.) Second, she granted an injunction, the legal remedy with the highest burden – one that should only be given in unique circumstances when the moving party can demonstrate actual injury. Does anyone think Tom Brady, the named plaintiff, is being substantially harmed right now?
Whether or not the players are right in the labor dispute does not change the fact that the law probably should not have supported Judge Nelson’s ruling. More than that, if it is not overturned (and judge’s rulings are treated with a presumption of validity at the appeals level) it will have major impact on all labor negotiations in professional sports. I can guarantee you the NBAPA is planning their own de-certification effort today. That labor battle is going to make this one look tame by comparison.
Maybe the right answer is that the league should not have been able to execute a lockout, I don’t know. But I do know that ruling is more likely to be detrimental to the sport of football than it is to be beneficial. Hopefully, the parties sit down and create a new CBA and none of this is relevant. Otherwise, professional sports may be changing significantly right before our eyes.
Sorry I said I’d be brief. Next time maybe.