Any help on this one?
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Labor Dispute Master Thread (2 Viewers)
- Thread starter Da Guru
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Idiot Boxer
Footballguy
Agreed. Takes some sifting, but there are rational voices representing both viewpoints in this thread.
Idiot Boxer
Footballguy
As I understand it, if the lock-out is lifted then the NFL has to come up with a set of rules that they feel like they can operate under and still pass anti-trust muster (or risk treble damages). This would preclude a lot of the measures that the NFL employs to promote parity and competitive balance. Owners will be required to move forward under such rules (or face allegations of collusion) and the owners contend that once that pandora's box is open, there is no real way to undo the damage and/or value the damage to the league that has been done. Whether you accept that argument or not largely relies on whether or not you believe that it is in the overall best interests of the league that there be some sort of attempt made at parity (which many here don't believe) and whether or not you believe the damage can be undone. I, personally, believe the parity is what makes the NFL unique - and ultimately the most interesting - of the professional sports leagues. Whether the damage could be undone, I'm not sure. It would depend on the Jerry Jones and Danny Snyders of the world. That said, in my opinion, there is more irreparable harm done to the owners than to the players and so I feel the balance of that measure falls to the owners side of the equation when balancing the equities.
cobalt_27
Footballguy
Precisely my thought, as well. The owners are using the lockout strictly as a negotiating/leverage strategy and claim it to be exactly that. The players have nimbly used the decertification tactic as their own negotiating/leverage strategy, but pretend that it is not emerging or growing out of a labor dispute. I have a feeling that a court will not be sympathetic to this argument. But, we shall see.
Thanks for the explanation. It seems pretty likely then that this situation would only apply to this off-season, as a CBA would likely be negotiated before next off-season. If that was the case, could parity and competitive balance really be harmed that much in only 1 off-season? Would it be impossible to keep some restrictions on free agency, or would every player without a contract have to be a free agent? It seems like free agents and the franchise tags would be the biggest issues affecting parity.
Idiot Boxer
Footballguy
Without the lockout, I'm not sure I see the imperative for the players to commit to a new CBA anytime soon. They've (owners and players) had two years to accomplish a CBA since the opt-out and they haven't made any significant progress. If players are getting paychecks, I'm not sure there is any direct pressure on players to enter into a new CBA. It wouldn't be until veteran minimums / lower end salaries / pensions / drug testing etc. hits home that the players might decide that they are better off under a CBA. By that time Jerry and Danny may not want back in.
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dparker713
Footballguy
What about c) they don't need to and d) it likely would have little effect on the players' position?
There are two issues here: whether the decertification was a "sham" such that the nonstatutory labor exemption still applies, and whether the district court lacked jurisdiction to enjoin the lockout because the dispute involves or grows out of a labor dispute. The owners have argued that the players' decertification was merely a negotiation tactic, but I believe they have brought it up only in the context of the first issue ("sham"), and not the second (jurisdiction).The problem for the owners is that "sham" is not a synonym for "litigation strategy." In 1989, the NLRB General Counsel opined, regarding the NFL players' previous decertification, that "the fact that the disclaimer was motivated by 'litigation strategy,' i.e., to deprive the NFL of a defense to players' antitrust suits and to free the players to engage in individual bargaining for free agency, is irrelevant so long as the disclaimer is otherwise unequivocal and adhered to."
I think it is possible to attack the decertification as not being in good faith if, as you suggest, its aim was to gain leverage for the union. But given Judge Nelson's ruling, that may prove difficult. There's nothing in any of the players' pleadings suggesting that the union has anything to do with anything. A few out-of-court statements by players may suggest as much, but is that enough to show clear error in Judge Nelson's factual finding that the decertification was in good faith? The owners may have a standard-of-review problem on that one.
Andrew Garda
Moderator
They don't need to. And the players don't need to take their word for it either.Also, I think it could very well have an effect on their position.
I agree with this, but it's not really the players who will make the decision. It's the union trade association leaders. I think there are obvious reasons why DeMaurice Smith would like to see the NFLPA re-certified.
Idiot Boxer
Footballguy
I think the 8th Circuit has tipped their hand in demonstrating that they feel it is against good policy to allow the players to toggle back and forth between labor/anti-trust laws whenever such choice benefits them solely from a negotiation tactic standpoint. I think this is likely why they will bend over backwards to find support for their position in their preliminary ruling. Certainly not 100%, but I believe if they are so inclined, and 2 of the 3 seem to be, there is enough there for them to overturn Judge Nelson.
fatness
Footballguy
David Dodds
Administrator
Kind of ironic that Colt's team doctors and Irsay were all allowed to communicate with Peyton before and after the surgery. I thought the lockout meant NO COMMUNICATIONS.
http://sports.espn.go.com/nfl/news/story?id=6584790
http://sports.espn.go.com/nfl/news/story?id=6584790
Jason Wood
Zoo York
Especially since Manning is one of the named plaintiffs in the antitrust suit. Just another illustration of how this is a sham on both sides and until they all get back to the negotiating table, nothing really matters.
The amicus brief filed by the local politicians and small business owners focuses solely on the issue of the public interest. (Albeit a different public interest since we're now talking about the injunction rather than its temporary stay.)
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Idiot Boxer
Footballguy
I'm trying to figure out why this brief and the prior one by the organization purportedly representing sports fans bother me so much. I am near being able to articulate it.
The brief by the NFL coaches (through their association) may bother you even more.I think the small business owners and fans raised some decent points regarding whether lifting the lockout serves the public interest. I'm much less persuaded by the coaches' arguments. They do raise some interesting (though probably legally irrelevant) facts, such as the fact that, about four years ago, all the teams started putting into all coaches' contracts a clause stating that their pay could be reduced in the event of a lockout. But their legal arguments, such as that the Sherman Act should protect the coaches against a lockout of the players, seem a little screwy.
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Faust
MVP
Some additional information on the brief that was filed by the NFL Coaches Association:
Coaches back players in lockout
scoobygang
Footballguy
I think it's because if the crux of the argument is whether Congress intended to strip courts of the jurisdicition to enjoin lockouts or didn't, then the public interest should be largely irrelevant. Any strike or lockout is going to adversely affect the public interest in some way. So, in the case of the player's union stiking, we'd never consider the public interest of local businesses and sports fans who are adversely affected. It's not as if Congress didn't know that consumers or other local businesses might be harmed by strikes when they passed the Norris-La Guardia Act. If the meatcutters strike, grocery store workers and consumers are harmed, but that can't trump the statute. Otherwise the statute is a nullity.Similarly, IMO, lockouts are either protected the same way or they're not. The Norris-LaGuardia Act actually has a provision for a review of the public interest. It places that prerogative with the President, but even assuming the public interest prong of the standard for a preliminary injunction is relevant, I think it has to be some type of special public interest that would somehow be outside the normal consideration of Congress when it passed the Act.
I suspect both sides would agree that if Congress effectively stripped courts of the jurisdiction to enjoin lockouts, the public interest would be completely irrelevant. If Congress did not strip courts of the jurisdiction to enjoin lockouts, however, the public interest hoo-ha remains essential. The parties (and participating amici) have to brief the public interest issue, because if lifting the lockout isn't in the public interest, the injunction should perhaps be denied even if the court has jurisdiction to issue it, and even if the court thinks the lockout is illegal.
renesauz
IBL Representative
Nice. I liked this part:
Idiot Boxer
Footballguy
Wow. Perhaps largely because it tracks my personal bias on the matter, but I feel like this is a big blow for the players. The owner's answer addresses all of the points raised in the player's brief and has the benefit of being the 'plain language' argument. I'm pretty certain that the lockout will continue and hopefully that will get the players back at the bargaining table.
I think, perhaps, what people aren't grasping here is that the owner's are still going to have to put on the table a relatively fair deal - regardless of whether the books are opened or not - or the players will use THEIR legally protected ability to strike much as the owners have used the lockout.
The owner's have put two different offers on the table. One in March and one in May. It is time for an actual counter-offer.
I think, perhaps, what people aren't grasping here is that the owner's are still going to have to put on the table a relatively fair deal - regardless of whether the books are opened or not - or the players will use THEIR legally protected ability to strike much as the owners have used the lockout.
The owner's have put two different offers on the table. One in March and one in May. It is time for an actual counter-offer.
Idiot Boxer
Footballguy
yes. they do.
Idiot Boxer
Footballguy
Just re-skimmed the whole thread. Interesting to go back and look at everyone's thoughts at different stages. I've tried to remain level headed in my arguments supporting the ownership side. Apologies for the times where I got a little snarky and/or responded to stick-poking. Thanks to everyone who has stuck to the issues and attempted to articulate their viewpoints without malice.
One thing is clear, this situation has been very fluid and 'anything can happen.' The owner's recent answer, I think, is a very strong argument, but I certainly don't put anything in the category of 'slam dunk' and we could still see the court of appeals go either way here.
My 'chicken little' NFL-sky-is-falling feeling is subsiding some, but I still sometimes fear the worst. Still can't stand the sight of Roger Goodell or D. Smith. And I can't listen to Kevin Mawae anymore either. But I'm really hoping that we are seeing a light at the end of the tunnel in the courts and hopefully a real negotiation soon.
One thing is clear, this situation has been very fluid and 'anything can happen.' The owner's recent answer, I think, is a very strong argument, but I certainly don't put anything in the category of 'slam dunk' and we could still see the court of appeals go either way here.
My 'chicken little' NFL-sky-is-falling feeling is subsiding some, but I still sometimes fear the worst. Still can't stand the sight of Roger Goodell or D. Smith. And I can't listen to Kevin Mawae anymore either. But I'm really hoping that we are seeing a light at the end of the tunnel in the courts and hopefully a real negotiation soon.
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Doug B
Footballguy
Comparing apples to elephants here, but this sounds like the kind of thing that was a concern when PATCO (air traffic controllers) went on strike in the 80s. Didn't Congress bascially tell them "you can't legally strike"? EDIT: Hey, PATCO ended up decertifying, too. Gotta keep reading up on this, but maybe it's not quite apples to elephants.
EDIT: Ah, the PATCO decertification was totally different -- it was involuntary.
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dparker713
Footballguy
President Reagan said they can't strike, and he used this provision IIRC. And shutting down a primary form of transportation is just slightly more disruptive than shutting down an entertainment option. Just slightly.
Doug B
Footballguy
Of course. But even if the situational commonalities are slight, some of the same legal ground might be being covered. To different eventual conclusions, I think we can assume.
bicycle_seat_sniffer
Smells like chicken
interesting that the Redskins coaches are standing by ownerhsip rather than the players
David Dodds
Administrator
Wouldn't a counter-offer by definition mean the NFLPA is still in business (and their decertification is a sham)? I expect all of the offers to come from the owners unfortunately.
Andrew Garda
Moderator
The owners promised (in court IIRC) that they wouldn't do that, if the Union (former union) came back to the table. One would assume it would cover responding to an offer with a counter.
In any case, the players can negotiate through their class counsel rather than through the NFLPA.
Idiot Boxer
Footballguy
MT - curious to hear your take on the Owner's reply.
I've read it, but I probably won't have time to write much until tomorrow. In short, I think it's well written (as we'd expect), and I think they make some good points. I'm at the point now where, on some of the issues (e.g., primary jurisdiction and the public interest) I think the players have the better argument, on some of the issues (e.g., waiver of 'sham' defense) I think the owners have the better argument, and on many of the issues, I don't think I can come down solidly in one camp or the other without reading all the cited cases myself, which I have no inclination to do.
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Idiot Boxer
Footballguy
I think this is a lot of it for me. I'm taking each party's attorney's at their word that each case they cite stands for the proposition for which they propose. Doing that, I suppose I will always feel the last party to respond has the upper hand. I feel like the plain language argument of the Owner's brief, however is superior to the 'term of art' argument on the primary jurisdiction issue. And you and are are philosophically going to disagree on who has the better argument for the 'public interest'. Interesting nonetheless.
Just to be clear, the main jurisdictional arguments involve the Norris-LaGuardia Act, which is where the "term of art" stuff comes in. Separate from that, there's the issue of "primary jurisdiction" (which was a new concept to me). That's the issue involving whether, even if Norris-LaGuardia doesn't deprive the district court of jurisdiction, the district court should have nonetheless stayed the lawsuit until after the NLRB had ruled on the 'sham' issue.
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David Dodds
Administrator
http://www.nationalfootballpost.com/DeMaurice-Smith-I-dont-see-why-wed-want-to-go-back-to-being-a-union.html
DeMaurice Smith: I don't see why we'd want to go back to being a union
DeMaurice Smith: I don't see why we'd want to go back to being a union
I agree with him, but I think he's lying.
David Dodds
Administrator
I agree with you on both accounts. But it's for this reason that I don't expect the players to offer any counter-proposal anytime soon.
Lucky Lefty
Footballguy
He is just trying make a point that decertification was not a sham...
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Dinsy Ejotuz
Footballguy
I'm not so sure that he's bluffing. But can he hold the players together long enough to make it happen?
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pretty hard to argue with a straight face that the de-cert was intended to be permanent when the players voted for it at the same meeting they elected their rep for the ongoing union activities for the coming season.
I agree that We may not see a counter proposal from the players soon. But when we hit July 4th and if the owners win the appeal, what possible strategy would include no counter proposal. The owners keep them lockout without negations to settle the anti-trust suit. Kurt Warner was quoted as saying the players need to give in an settle. I don't believe they have a lot to gain by not countering if the owners win the appeal. They have a lot to lose though.
dparker713
Footballguy
The rank and file mostly make the minimum, or close to it. When instead of getting $400k+ they're only offered $50k, they'll want a union to require a higher minimum. The stars will be fine either way, but sports unions break because of the lesser players.
Assume that Smith speaks the truthHis goal is to eliminate the union and all provisions in violation of anti-trust
It's not just a negotiating ploy
What should the NFL do to try to salvage the business model which has been incredibly successful for both players and owners?
I don't know what they should do. However, I think the answer they may have is to lockout until they come begging.
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Catbird
Footballguy
You can imagine all of the motivations you want to, particilary if you are ardently pro-union and think players will thrive in a 'free market' or believe in a large market owner conspiracy theory, but neither side envisions any result other than a negotiated CBA. The players won't ever, can't ever, give up their guaranteed minimum salaries and the owners won't risk messing with the profit expanding parity and salary caps that allow them to thrive. A negotiated settlement will take no more than 3-4 days, but that work won't even start until one side feels enough risk of losing games and/or paychecks to make substancial concessions. A lockout and starving the players into taking less to get into camp and get paid remains the owners key strategy and getting the 8th Circuit to enjoin the lockout (so players are getting paid while negotiating) remains the players' best hope for a negotiating advantage. IMO, anyone who believes either side wants anything but a CBA or doesn't see the rabid claims asserted both ways as the negotiating tools they are, is delusional.
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The members of the premier division get there by spending more money than everyone else. That's why ManU were playing in the Champions League Final this morning and Crystal Palace will never compete until they find a new billionaire owner. English football is the worst format in global sport with its ridiculous barriers to competition within its own league. They don't even have playoffs which may give teams outside of the big 4 a shot at actually winning something.
