Labor Dispute Master Thread (1 Viewer)

[Idiot Boxer]

I have suddenly realized why I respect MT's legal analysis, but find myself diametrically opposed to his conclusions (and his diet).

Effin Dookie.

 

[Obie Wan]

This is why I think the players decertified as well. The players wanted business open while the negotiations continued (that strategy clearly favors the players). The billion dollar question now becomes this:

Can the players make more money with or without a CBA? I am not sure anyone really knows the answer to that. Generally leagues with less restrictions on salary, free agency have led to increased dollars to the players. I sense in the longrun that would happen in the NFL too as weak ownership groups would sell to the many billionaires itching to own a team. But attacking the fabric of what the fans love (competitive balance, the draft, etc) could backfire significantly with a loss of fans. Plus to get these changes would clearly mean a lost season at a minimum. It will be interesting to see what kind of offer the owners present to the players to entice them to back off of their litigation strategy.

They can't make money without a CBA, because there won't be a league without a CBA. All professional leagues in the U.S. operate under a CBA, which is what allows them to do the things they do. Not only do MLB, NHL and NBA have CBAs, but even MLS and Arena Football do. It's mandatory for all the reasons we've been discussing.

So you are saying that if a deal doesn't get done, that the lockout will go forever? We may never know the answer to this, but I suspect at some time the owners would implement a series of rules and play football.

I'm saying that a CBA is a non-negotiable part of the structure of a professional sports league, and that both sides understand that. Which is why this path the players went down was dangerous from the start, and largely a misstep because they're biting off their nose to spite their face. Whether there needs to be a union is up for debate, but whether there needs to be a CBA is not.

OK, I'll bite since I don't have time to really think this through: why does a sports league absolutely need a CBA?

the simple answer to this is that without a CBA, no matter rulers the league puts in, it will always be open to nuisance suits brought at any time to challenge some aspect of the operation for the sole purpose of gaining leveragethe owners need and want certainty in their cost structure, not an unlimited window to battle litigation

All businesses are subject to litigation if they play footloose and fancy free with American labor laws.

which is what the league would be doing without a CBA

As noted previously, it may be possible to adhere labor law and still have a viable league. It would have a drastically different format but not necessarily a worse one.I seem to be more receptive to drastic change than most here. That might be because I'm older than most and grew up in the days of black and white tv, three channels. No computers or cell phones. A 12-team NFL and no DH. All I've ever known in my life is change.

you may be right that certain provisions could survive anti-trust challenge in a world without a CBAbut everyone of those provisions would be subject to challenge as anti-trust violations subject to treble damages

The players sure aren't going to reimburse the owners the legal fees for the litigation and possible penalties to find out.

so why would the owners even consider operating without a CBA and exposing themselves to an unquantifiable risks when they can avoid all of the risk by operating under a CBA?

Football without a CBA is a pipedream

 

[bicycle_seat_sniffer]

This is why I think the players decertified as well. The players wanted business open while the negotiations continued (that strategy clearly favors the players). The billion dollar question now becomes this:

Can the players make more money with or without a CBA? I am not sure anyone really knows the answer to that. Generally leagues with less restrictions on salary, free agency have led to increased dollars to the players. I sense in the longrun that would happen in the NFL too as weak ownership groups would sell to the many billionaires itching to own a team. But attacking the fabric of what the fans love (competitive balance, the draft, etc) could backfire significantly with a loss of fans. Plus to get these changes would clearly mean a lost season at a minimum. It will be interesting to see what kind of offer the owners present to the players to entice them to back off of their litigation strategy.

They can't make money without a CBA, because there won't be a league without a CBA. All professional leagues in the U.S. operate under a CBA, which is what allows them to do the things they do. Not only do MLB, NHL and NBA have CBAs, but even MLS and Arena Football do. It's mandatory for all the reasons we've been discussing.

So you are saying that if a deal doesn't get done, that the lockout will go forever? We may never know the answer to this, but I suspect at some time the owners would implement a series of rules and play football.

I'm saying that a CBA is a non-negotiable part of the structure of a professional sports league, and that both sides understand that. Which is why this path the players went down was dangerous from the start, and largely a misstep because they're biting off their nose to spite their face. Whether there needs to be a union is up for debate, but whether there needs to be a CBA is not.

OK, I'll bite since I don't have time to really think this through: why does a sports league absolutely need a CBA?

the simple answer to this is that without a CBA, no matter rulers the league puts in, it will always be open to nuisance suits brought at any time to challenge some aspect of the operation for the sole purpose of gaining leveragethe owners need and want certainty in their cost structure, not an unlimited window to battle litigation

All businesses are subject to litigation if they play footloose and fancy free with American labor laws.

which is what the league would be doing without a CBA

As noted previously, it may be possible to adhere labor law and still have a viable league. It would have a drastically different format but not necessarily a worse one.I seem to be more receptive to drastic change than most here. That might be because I'm older than most and grew up in the days of black and white tv, three channels. No computers or cell phones. A 12-team NFL and no DH. All I've ever known in my life is change.

you may be right that certain provisions could survive anti-trust challenge in a world without a CBAbut everyone of those provisions would be subject to challenge as anti-trust violations subject to treble damages

The players sure aren't going to reimburse the owners the legal fees for the litigation and possible penalties to find out.

so why would the owners even consider operating without a CBA and exposing themselves to an unquantifiable risks when they can avoid all of the risk by operating under a CBA?

Football without a CBA is a pipedream

Football wihtout a CBA happened for years and if the lockout is lifted by the courts, the NFL will install rules and then as part of a CBA eventually any lawsuits will be dropped or settled out of court

 

[roadkill1292]

This is why I think the players decertified as well. The players wanted business open while the negotiations continued (that strategy clearly favors the players). The billion dollar question now becomes this:

Can the players make more money with or without a CBA? I am not sure anyone really knows the answer to that. Generally leagues with less restrictions on salary, free agency have led to increased dollars to the players. I sense in the longrun that would happen in the NFL too as weak ownership groups would sell to the many billionaires itching to own a team. But attacking the fabric of what the fans love (competitive balance, the draft, etc) could backfire significantly with a loss of fans. Plus to get these changes would clearly mean a lost season at a minimum. It will be interesting to see what kind of offer the owners present to the players to entice them to back off of their litigation strategy.

They can't make money without a CBA, because there won't be a league without a CBA. All professional leagues in the U.S. operate under a CBA, which is what allows them to do the things they do. Not only do MLB, NHL and NBA have CBAs, but even MLS and Arena Football do. It's mandatory for all the reasons we've been discussing.

So you are saying that if a deal doesn't get done, that the lockout will go forever? We may never know the answer to this, but I suspect at some time the owners would implement a series of rules and play football.

I'm saying that a CBA is a non-negotiable part of the structure of a professional sports league, and that both sides understand that. Which is why this path the players went down was dangerous from the start, and largely a misstep because they're biting off their nose to spite their face. Whether there needs to be a union is up for debate, but whether there needs to be a CBA is not.

OK, I'll bite since I don't have time to really think this through: why does a sports league absolutely need a CBA?

the simple answer to this is that without a CBA, no matter rulers the league puts in, it will always be open to nuisance suits brought at any time to challenge some aspect of the operation for the sole purpose of gaining leveragethe owners need and want certainty in their cost structure, not an unlimited window to battle litigation

All businesses are subject to litigation if they play footloose and fancy free with American labor laws.

which is what the league would be doing without a CBA

As noted previously, it may be possible to adhere labor law and still have a viable league. It would have a drastically different format but not necessarily a worse one.I seem to be more receptive to drastic change than most here. That might be because I'm older than most and grew up in the days of black and white tv, three channels. No computers or cell phones. A 12-team NFL and no DH. All I've ever known in my life is change.

you may be right that certain provisions could survive anti-trust challenge in a world without a CBAbut everyone of those provisions would be subject to challenge as anti-trust violations subject to treble damages

The players sure aren't going to reimburse the owners the legal fees for the litigation and possible penalties to find out.

so why would the owners even consider operating without a CBA and exposing themselves to an unquantifiable risks when they can avoid all of the risk by operating under a CBA?

Football without a CBA is a pipedream

Never say never. At some point in time the rest of the country may ask themselves why only the fans in 31 cities get to have an NFL team. And maybe the Premier League model will start to look pretty good to the folks in Des Moines and Amarillo. That kind of league won't necessarily require nearly as restrictive a CBA as the current one (or most recent one, as it were).Things change.

 

[renesauz]

Football wihtout a CBA happened for years and if the lockout is lifted by the courts, the NFL will install rules and then as part of a CBA eventually any lawsuits will be dropped or settled out of court

This is true, but the owners nuts were ON FIRE last time. They gave up a ton to avoid treble damages and all kinds of court ordered nastiness. There's nothing significant to (they're remotely willing to) give up this time (except MORE money.) They've taken a different tact this time, and I wouldn't expect football in 2011 without a CBA. Last time the owners arrogantly figured they'd eventually win the trust suits in court...this time they knopw they won't. The owners will, this time, avoid operating without a CBA as long as they can...which appears likely to pass muster for at least this year.

 

[renesauz]

Never say never. At some point in time the rest of the country may ask themselves why only the fans in 31 cities get to have an NFL team. And maybe the Premier League model will start to look pretty good to the folks in Des Moines and Amarillo. That kind of league won't necessarily require nearly as restrictive a CBA as the current one (or most recent one, as it were).

Things change.

There are things they could give up/change which might bother me, but I could live with (ditching the draft for example). A premier league model however, would break my heart. The overwhelming majority of fans would be against that, I'm sure.And I live in Hampton Roads....outside LA, the biggest TV market in the country without a football team, and EASILY the biggest without a pro sports team of any kind.

 

[renesauz]

By the way...for those guys favoring ditching the draft:

It's no coincidence that most of the best college football teams reside in the southern half of the country. Miami, USC, and 'Bama enjoy HUGE recruiting advantages over the Northern teams just because of the weather. It would be foolish to assume that advantage wouldn't also apply to pro teams looking to hire young talent coming out of college. What 22 year old kid would choose to live in Buffalo or Green Bay as opposed to Miami or San Diego if the offered money were the same? Northern teams would have to pay MORE for similar talent.

A free-for all infusion of young talent may not kill parity if the cap stayed in place, but it would hurt it.

 

[roadkill1292]

Never say never. At some point in time the rest of the country may ask themselves why only the fans in 31 cities get to have an NFL team. And maybe the Premier League model will start to look pretty good to the folks in Des Moines and Amarillo. That kind of league won't necessarily require nearly as restrictive a CBA as the current one (or most recent one, as it were).

Things change.

There are things they could give up/change which might bother me, but I could live with (ditching the draft for example). A premier league model however, would break my heart. The overwhelming majority of fans would be against that, I'm sure.And I live in Hampton Roads....outside LA, the biggest TV market in the country without a football team, and EASILY the biggest without a pro sports team of any kind.

What's so heartbreaking about it?Let's see, at 16 teams per division (I just pulled that number out of my butt but it sounds about right) I figure Tidewater to be a middle Division 3 club. Reasonable shot at advancing to D2 every once in a while if they have the right ownership. If they hang on to some of that great local talent (screw those old college eligibility rules, BTW), could even be a threat to move up to the premiership. Pulling for the home team would almost have to be better than rooting for the crappy old Iggles 300 miles away.

Things change.

 

[renesauz]

What's so heartbreaking about it?

Let's see, at 16 teams per division (I just pulled that number out of my butt but it sounds about right) I figure Tidewater to be a middle Division 3 club. Reasonable shot at advancing to D2 every once in a while if they have the right ownership. If they hang on to some of that great local talent (screw those old college eligibility rules, BTW), could even be a threat to move up to the premiership. Pulling for the home team would almost have to be better than rooting for the crappy old Iggles 300 miles away.

Things change.

Because anything outside of the top tier is like playing AA or AAA baseball. Yeah...it's kind of fun and a nice way to spend an afternoon...but nobody really follows it. IS there ANY real national following for the teams that wins the "championship" in the third tier? Does ANYONE outside the local community of the involved schools pay attention to who wins the NCAA Division 2 championship? If you're in a lower division, are you even really a champion? I'm sure the Ohio states and the USCs of the world would laugh at the claim of champion from any Div. II school.We have a similar setup in college ball. We have local teams VIA college ball. WE don't need our NATIONAL league to be made local...we need it to be ENTIRELY PREMIER.

I never hear about college athletics in England...do they have anything other then club teams? It seems like their pro leagues fill both the local and national craving for pro sports....our pro teams need address only the national.

ETA: I have a local third or fourth tier team to root for thanks...ODU football.

 

[roadkill1292]

What's so heartbreaking about it?

Let's see, at 16 teams per division (I just pulled that number out of my butt but it sounds about right) I figure Tidewater to be a middle Division 3 club. Reasonable shot at advancing to D2 every once in a while if they have the right ownership. If they hang on to some of that great local talent (screw those old college eligibility rules, BTW), could even be a threat to move up to the premiership. Pulling for the home team would almost have to be better than rooting for the crappy old Iggles 300 miles away.

Things change.

Because anything outside of the top tier is like playing AA or AAA baseball. Yeah...it's kind of fun and a nice way to spend an afternoon...but nobody really follows it. IS there ANY real national following for the teams that wins the "championship" in the third tier? Does ANYONE outside the local community of the involved schools pay attention to who wins the NCAA Division 2 championship? If you're in a lower division, are you even really a champion? I'm sure the Ohio states and the USCs of the world would laugh at the claim of champion from any Div. II school.We have a similar setup in college ball. We have local teams VIA college ball. WE don't need our NATIONAL league to be made local...we need it to be ENTIRELY PREMIER.

I never hear about college athletics in England...do they have anything other then club teams? It seems like their pro leagues fill both the local and national craving for pro sports....our pro teams need address only the national.

ETA: I have a local third or fourth tier team to root for thanks...ODU football.

There's plenty of room for both. The English somehow seem to keep pretty close track of over 80 teams in the top four divisions, divisions which are dynamic by their very nature. And if nobody outside of D6 Chattanooga pays much attention to the Charlies or whatever, that's ok, too. The Charlies will always have a chance to advance to a division where people will pay attention.More importantly, the members of the Premier division will have gotten there by merit. No more Mike Browns riding the gravy train (though they will always have the opportunity to reverse their fortunes). With no artificial restraints obstructing him, maybe Mark Cuban will start a team in San Antonio and work his way up through the ranks to do battle with the Cowboys and Redskins. Oh, I see intrigue and hurt feelings all over the place. It'll be glorious.

Oh, almost forgot to address the effects on college ball. If it has an adverse effect on the popularity of the college game, that's something I can live with.

 

[Maurile Tremblay]

Just not true. The NFL was able to function in the late 80s without a CBA. Baseball operated for nearly 100 years without a CBA. A CBA is necessary to impose a draft, minimum salaries, caps, and restricted free agency. Its possibly necessary for limiting rosters, drug testing, and a combined pension plan. It is not necessary to the actual functioning of the league.

But would you then have 32 teams with 32 ways of doing business and 32 sets of rules for dealing with players ecetera - and would that cause problems?

First, there's no reason except for the benefit of the current ownership group to maintain the league at 32 franchises (oh, lots of little reasons but I could easily imagine bigger reasons otherwise).Second, what kind of problems can you envision? Wouldn't it all be part of the competitive process?

I think this touches on an interesting issue that I don't think many people are taking into consideration at all: the idea that if the the NFL no longer has an anti-trust exemption thanks to the CBA, does it open up the possibility that other potential owners could sue the NFL saying that the NFL is using their monopoly status to unfairly keep them out of the pro football ownership club and that by refusing to agree to schedule games against their team, they are colluding illegally.So you could suddenly have 20 ownership groups pop up trying to force their way into the pro football game. And the NFL goes from 32 teams to 50 teams. This would seem to benefit potential employees a ton since you would have 20 teams worth of rosters suddenly available instead of those guys being out of football.

Having a CBA offers no protection against that. (A CBA doesn't provide a general, all-purpose antitrust exemption. It provides an exemption only for labor-ish stuff that primarily affects the relationship between owners and players, not between owners and other businessmen who aren't parties to the CBA.)So if that could happen without a CBA, it could happen just as easily with one.

 

[bicycle_seat_sniffer]

Football wihtout a CBA happened for years and if the lockout is lifted by the courts, the NFL will install rules and then as part of a CBA eventually any lawsuits will be dropped or settled out of court

This is true, but the owners nuts were ON FIRE last time. They gave up a ton to avoid treble damages and all kinds of court ordered nastiness. There's nothing significant to (they're remotely willing to) give up this time (except MORE money.) They've taken a different tact this time, and I wouldn't expect football in 2011 without a CBA. Last time the owners arrogantly figured they'd eventually win the trust suits in court...this time they knopw they won't. The owners will, this time, avoid operating without a CBA as long as they can...which appears likely to pass muster for at least this year.

right, they wont do it, but if the court orders em open for business they have no choice.

 

[Maurile Tremblay]

Something called the Sports Fans Coalition filed a brief containing its views on the preliminary injunction against the lockout.

 

[Doug B]

If they hang on to some of that great local talent (screw those old college eligibility rules, BTW), could even be a threat to move up to the premiership.

If the relegation model took hold in American pro football, and local talent tended to stay local and skip college ball to play professionally ... you'd have some interesting power bases.- The Tidewater area could field an excellent pro football team. Jackson, MS could be an even better one in a lot of years.- California, Florida, and Texas could have several Premiership teams each.- New Orleans and Birmingham would be powers- Pittsburgh and a few Ohio cities would also be powers- might be underrating the amateur football talent in these areas, but it seems that teams based in New York, Chicago, Philly, St. Louis, Denver, Seattle, etc. would largely have to purchase talent developed in other areas.

 

[scoobygang]

Something called the Sports Fans Coalition filed a brief containing its views on the preliminary injunction against the lockout.

Not the best brief that's been filed, but maybe the most interesting and gutsiest doctrinally. I don't think it can be right on the intersection of the Wagner Act and Sherman Act, and I think they could have made more hay by focusing exclusively on the public interest. But it's still kind of neat.

 

[roadkill1292]

If they hang on to some of that great local talent (screw those old college eligibility rules, BTW), could even be a threat to move up to the premiership.

If the relegation model took hold in American pro football, and local talent tended to stay local and skip college ball to play professionally ... you'd have some interesting power bases.- The Tidewater area could field an excellent pro football team. Jackson, MS could be an even better one in a lot of years.- California, Florida, and Texas could have several Premiership teams each.- New Orleans and Birmingham would be powers- Pittsburgh and a few Ohio cities would also be powers- might be underrating the amateur football talent in these areas, but it seems that teams based in New York, Chicago, Philly, St. Louis, Denver, Seattle, etc. would largely have to purchase talent developed in other areas.

Yup, all sorts of interesting things would happen. I presume (and I've tried mightily to shy away from any kinds of legal commentary in this thread) that a dismantlement of the NFL as we know it would also mean the end of the Clarett rule regarding eligibility, which could certainly upset the existing applecart.Think about something even more outlandish. Suppose fielding a D4 or D5 team was mildly profitable or at least break even. Assuming a universally inclusionary membership policy, why couldn't a city or region field a publicly supported team? It's not like we don't already have a model for such a beast and it might be really interesting to have the head of the football club be an elected position. Cities could justify it on the same grounds as they do public parks.The larger point I'm trying to make is that a more wide-open and inclusionary league could have lots of advantages that no one is even imagining right now. (spell check is telling me that inclusionary is wrong -- I don't care right now)

 

[roadkill1292]

Something called the Sports Fans Coalition filed a brief containing its views on the preliminary injunction against the lockout.

Not the best brief that's been filed, but maybe the most interesting and gutsiest doctrinally. I don't think it can be right on the intersection of the Wagner Act and Sherman Act, and I think they could have made more hay by focusing exclusively on the public interest. But it's still kind of neat.

That's fairly difficult reading for a fifth-tier guy like me. Two things that I got out of it were (please correct me if wrong):1. They support Maurile's contention that football under different rules is better than no football at all.

2. They reject Mr. Goodell's contention that football under normal antitrust rules (no CBA) would be disastrous.

 

[scoobygang]

That's fairly difficult reading for a fifth-tier guy like me. Two things that I got out of it were (please correct me if wrong):1. They support Maurile's contention that football under different rules is better than no football at all.2. They reject Mr. Goodell's contention that football under normal antitrust rules (no CBA) would be disastrous.

Most radically, they make the following assumption about the intersection of antitrust/labor law. That the decision of whether a labor market is handled under collective bargaining regulated by the Wagner Act or through a competitive market through the Sherman Act is a decision that is completely up to labor. A labor union could go on strike, change it's mind and decertify (requiring a multi-employer bargaining unit to change all its employement terms), and then change its mind and recertify to demand collective bargaining. And all of this would have immediate effect.It seems to me that this would make multi-employer bargaining pretty much unpracticeable. The second half of the brief insists that some rules would likely be upheld by the Rule of Reason. This may be true, but so many of the rules are per se violations, that I'm not sure how to credit the argument. A salary cap probably would never get to the Rule of Reason. It's price-fixing. A draft is a market division or a concerted refusal to deal. A franchise tag is probably a concerted refusal to deal. All of those typically are handled as per se violations. Even if they were handled under the Rule of Reason, the uncertainty would be ridiculous. A good example is Maurile's salary floor example. If that ever got to a Rule of Reason analysis, I think he's right in that it would be upheld. But precedent has treated any collusion on price/wages as a per se violation.

 

[Andrew Garda]

If they hang on to some of that great local talent (screw those old college eligibility rules, BTW), could even be a threat to move up to the premiership.

If the relegation model took hold in American pro football, and local talent tended to stay local and skip college ball to play professionally ... you'd have some interesting power bases.- The Tidewater area could field an excellent pro football team. Jackson, MS could be an even better one in a lot of years.- California, Florida, and Texas could have several Premiership teams each.- New Orleans and Birmingham would be powers- Pittsburgh and a few Ohio cities would also be powers- might be underrating the amateur football talent in these areas, but it seems that teams based in New York, Chicago, Philly, St. Louis, Denver, Seattle, etc. would largely have to purchase talent developed in other areas.

Yup, all sorts of interesting things would happen. I presume (and I've tried mightily to shy away from any kinds of legal commentary in this thread) that a dismantlement of the NFL as we know it would also mean the end of the Clarett rule regarding eligibility, which could certainly upset the existing applecart.Think about something even more outlandish. Suppose fielding a D4 or D5 team was mildly profitable or at least break even. Assuming a universally inclusionary membership policy, why couldn't a city or region field a publicly supported team? It's not like we don't already have a model for such a beast and it might be really interesting to have the head of the football club be an elected position. Cities could justify it on the same grounds as they do public parks.The larger point I'm trying to make is that a more wide-open and inclusionary league could have lots of advantages that no one is even imagining right now. (spell check is telling me that inclusionary is wrong -- I don't care right now)

while I don't think I'd want to see this at the pro level, some sort of premiere league format at the CFB level is interesting (and I've seen proposed somewhere before). The idea being that the basic structure is there with the FCS and lower level division programs moving up or down depending on success - capped off by a Nat Champ tourney.I'm not saying it wouldn't work at the NFL level, just that my brain can't comprehend it and I fear change on that level.

 

[roadkill1292]

I'm amused by the fact that our defending Super Bowl champions are a non-profit entity where no individual owns more than 4% of the stock. And wonder what kind of sore spot this is with the rest of the league's owners. Do they ever mutter to each other "What if this virus gets loose and starts to spread?"

 

[ConstruxBoy]

The players know that a league without a CBA and parity between teams will badly damage the league, its income and its fan base within a few seasons, and beginning immediately as teams and fans lose their most favored players to richer owners.

I don't think that's proven at all. The game could easily have more fans and more money if failing franchises like Buffalo got out of the business, and a new owner with money moved them to Toronto or Los Angeles. In fact, it's financially insane that there's no football in Los Angeles, and that's a direct result of the current NFL structure.

LA has had numerous failed teams. Size alone does not necessarily dictate a good football market. As football markets go, LA is mediocre.

I'm pretty sure LA is a better football market than Buffalo. The Rams went 23-47 in their last 5 years there, and the Raiders never really moved (plus they're run by a senile old man). I can't imagine that anyone could argue that having a franchise in Buffalo does more to maximize the NFL fan base and revenue than having a franchise in LA would.

Your jealousy of Buffalo is always amusing. It's even more amusing to know that a loan from that senile old man to Ralph Wilson helped keep the Bills in Buffalo back in the day.

you've got that backwards there sonnyhttp://raidergirls.com/raiders_blog/tag/ralph-wilson-raiders-loan/

My bad, thanks!

 

[Maurile Tremblay]

Here is the brief by the MLBPA, NHLPA, and NBAPA.

 

[steelcitysledgehammers]

Meh, this whole thing looks to me like it's about revenue sharing. If you've actually been paying attention to the owners for the last decade-and-a-half you'll know they're not a chummy bunch.

I see this entire issue having started in '95 when Jerry Jones made his deals with Nike and Pepsi for Texas Stadium. The league sued him (likely because he had no intention of sharing the profits) and he countered with an anti-trust lawsuit. Guess what? The league capitulated and Jerry got to keep all his profits to himself. Thus started the stadium boom because to make money you had to have the rights to your stadium.

Fast Forward to the 2006 CBA - The owners disliked only two things about the 2006 CBA. 1) The fact the players got this extra "stadium" revenue added to the total from which the cap is determined (they got their taste) and 2) The fact the NFLPA forced them to share revenue. Go back and research the resigning of the NFL Trust (now the NFL Master Agreement) in 2004 or the last CBA negotiations in 2006 and you'll see the major sticking point during both discussions was revenue sharing. You'll also notice these guys do NOT agree on how the league should be run.

I think we're looking at a cadre of 8-12 owners who have adamantly refused to participate in revenue sharing any longer so there isn't enough opposition to overrule them (the owners decide things on 3/4 votes). Thus, they're dragging the other owners along with them into this lawsuit and the other owners are just along for the ride. They're still smart enough to recognize, whatever they do, they have to do appear to be doing it unanimously in order to give it more weight. They can continue to show solidarity at this point though because they haven't lost any money yet. While it's true that there are many teams that could afford this lockout, let's not pretend they ALL can. As the deadline reaches the point of lost games, you're going to see a few owners breaking from the party line (just as you will players).

I'm really surprised at those who support the owners based solely on the evidence they've presented. They claim the economic system is "broken" when they're the one's responsible for breaking it. Now they want the players to fix it for 'em. I say screw the owners.

I also disagree with those who think De Smith is at fault here. He is running the playbook left to him by Gene Upshaw. Everything. Everything. Everything he's done so far is EXACTLY what Gene Upshaw said the NFLPA would do. Let's stop the hype about Smith. Is he a smarmy lawyer? Hell yes. But the players aren't where they are because Smith's a lawyer. It's only because Smith's a lawyer and they knew what they were going to do that he's there (got that?).

That's all I got for now.

J

 

[Maurile Tremblay]

The NFL Players' brief.

 

[Maurile Tremblay]

The NFL Players' brief.

This is really persuasive on the jurisdictional issues, which the players' previous brief (opposing the stay request) gave short shrift to. I'm going to change my mind once again and say that, after reading this, I no longer think the 8th Circuit will reverse Judge Nelson on jurisdictional grounds, despite its contrary indications in its ruling on the stay. (It may still reverse her on the irreparable harm stuff, although it owes her more deference there because it's more fact-driven.)I'm looking forward to the owners' reply. But IMO they've really got their work cut out for them on "labor dispute," "growing out of," and "any relation of employment." I'll try to post more on this topic later.

 

[otis68]

The NFL Players' brief.

I hadn't realized Ted Olson is on the player's appeal. He and David Boies really are the odd couple aren't they.

 

[cobalt_27]

The NFL Players' brief.

This is really persuasive on the jurisdictional issues, which the players' previous brief (opposing the stay request) gave short shrift to. I'm going to change my mind once again and say that, after reading this, I no longer think the 8th Circuit will reverse Judge Nelson on jurisdictional grounds, despite its contrary indications in its ruling on the stay. (It may still reverse her on the irreparable harm stuff, although it owes her more deference there because it's more fact-driven.)I'm looking forward to the owners' reply. But IMO they've really got their work cut out for them on "labor dispute," "growing out of," and "any relation of employment." I'll try to post more on this topic later.

Good perspective. This combined with otis's post above are great back-to-back contributions.

 

[Wadsworth]

Meh, this whole thing looks to me like it's about revenue sharing. If you've actually been paying attention to the owners for the last decade-and-a-half you'll know they're not a chummy bunch.I see this entire issue having started in '95 when Jerry Jones made his deals with Nike and Pepsi for Texas Stadium. The league sued him (likely because he had no intention of sharing the profits) and he countered with an anti-trust lawsuit. Guess what? The league capitulated and Jerry got to keep all his profits to himself. Thus started the stadium boom because to make money you had to have the rights to your stadium. Fast Forward to the 2006 CBA - The owners disliked only two things about the 2006 CBA. 1) The fact the players got this extra "stadium" revenue added to the total from which the cap is determined (they got their taste) and 2) The fact the NFLPA forced them to share revenue. Go back and research the resigning of the NFL Trust (now the NFL Master Agreement) in 2004 or the last CBA negotiations in 2006 and you'll see the major sticking point during both discussions was revenue sharing. You'll also notice these guys do NOT agree on how the league should be run.I think we're looking at a cadre of 8-12 owners who have adamantly refused to participate in revenue sharing any longer so there isn't enough opposition to overrule them (the owners decide things on 3/4 votes). Thus, they're dragging the other owners along with them into this lawsuit and the other owners are just along for the ride. They're still smart enough to recognize, whatever they do, they have to do appear to be doing it unanimously in order to give it more weight. They can continue to show solidarity at this point though because they haven't lost any money yet. While it's true that there are many teams that could afford this lockout, let's not pretend they ALL can. As the deadline reaches the point of lost games, you're going to see a few owners breaking from the party line (just as you will players).I'm really surprised at those who support the owners based solely on the evidence they've presented. They claim the economic system is "broken" when they're the one's responsible for breaking it. Now they want the players to fix it for 'em. I say screw the owners.I also disagree with those who think De Smith is at fault here. He is running the playbook left to him by Gene Upshaw. Everything. Everything. Everything he's done so far is EXACTLY what Gene Upshaw said the NFLPA would do. Let's stop the hype about Smith. Is he a smarmy lawyer? Hell yes. But the players aren't where they are because Smith's a lawyer. It's only because Smith's a lawyer and they knew what they were going to do that he's there (got that?).That's all I got for now.J

I really think this is worth the read for anyone that passed over it the first time. There's a lot of reason to believe that the high revenue owners are leading this hard line position in order to avoid the revenue sharing issue which was never settled. And if you are willing to go down the rabbit hole a little farther, what's the worst case scenario for the high revenue owners? The players win the antitrust case and the league gets blown up allowing the big revenue team to compete in a more baseball like money driven league. The players would be to blame and big revenue owners would get what some claim they've wanted all along. It's a win/win situation for the big revenue teams. /conspiracy theory

 

[Maurile Tremblay]

In March, at the expiration of the most recent NFL collective bargaining agreement, the NFL players decertified their union, and the NFL owners locked them out. The players immediately sued the owners on antitrust grounds and requested a preliminary injunction barring the lockout.

In April, a federal district court granted the preliminary injunction sought by the players. The owners immediately appealed, and asked the 8th Circuit to stay enforcement of the district court's injunction until after it could hear the appeal.

Earlier this month, a panel of three 8th Circuit judges granted the owners' request for a stay (in a 2–1 decision), in part because they were skeptical that the district court had proper jurisdiction to issue an injunction lifting the lockout.

The players filed their brief yesterday asking the 8th Circuit to uphold the district court's injunction on appeal. The jurisdictional issues over which the 8th Circuit expressed skepticism take center stage in that brief.

The Norris-LaGuardia Act.

The jurisdictional issues are governed by the Norris-LaGuardia Act. Here's my paraphrase of the relevant parts of the Act:

No court has jurisdiction to issue a temporary or permanent injunction, in any case involving or growing out of a labor dispute, to prohibit anyone from ceasing or refusing to perform any work or to remain in any relation of employment. (Section 1 and Section 4(a).) The purpose of this limitation on jurisdiction is to ensure that laborers are free from coercion by employers when engaged in collective bargaining. (Section 2.)

The term "labor dispute" includes any controversy concerning terms or conditions of employment. (Section 13(c).) A case involves or grows out of a labor dispute when it is between employers and employees, or when it involves parties more peripherally related to each other as long as they are in the same industry. (Section 13(a).)

(Here is the Norris-LaGuardia Act, so you can see where I'm getting this stuff. Click on "§ 101" to read Section 1, "§ 102" to read Section 2, etc.)The owners' argument.

The owners' argument is pretty straightforward. A labor dispute includes any controversy concerning terms or conditions of employment. The dispute between the NFL owners and players concerns terms of employment. It is therefore a labor dispute, or at least has grown out of a labor dispute. Judge Nelson therefore lacked jurisdiction to issue an injunction requiring the owners to remain in any relation of employment with the players. Lifting the lockout required the owners to remain in an employment relationship with the players. Therefore, Judge Nelson had no jurisdiction to issue an injunction lifting the lockout.

Very neat and tidy and syllogistic.

The players' argument.

The players' argument takes a lot more words to explain, but is ultimately quite persuasive, IMO.

"Labor dispute."

There is plenty of evidence that the term "labor dispute" is a legal term of art referring only to disputes involving unions. There are cases saying so, and legal textbooks ("hornbooks") by respected law professors, and the legislative history of the Norris-LaGuardia Act itself. The literal reading of Section 13(c)'s definition would bring ordinary breach-of-employment-contract cases within the ambit of Norris-LaGuardia, which is silly.

Moreover, Section 13(c) doesn't state that a labor dispute means any controversy concerning terms of employment, but that it includes such controversies. The word "includes" often functions to expand the normal meaning of a term in only one respect. To use the example from the players' brief, if an NFL television contract defines a "Monday Night Football game" as including any game originally scheduled to be played on Monday night (even if subsequently rescheduled), that doesn't mean it includes hockey games scheduled for Monday nights. In that example, "includes" functions to expand the definition of "Monday Night Football game" to encompass certain games not actually played on Monday nights, but it leaves the other limitations on what may qualify as a Monday Night Football game (such as that it must be a football game) intact. The same thing is going on in Section 13(c). It's expanding the ordinary definition of "labor dispute" to encompass disputes between parties other than employers and employees, but leaves other limitations on what may qualify as a labor dispute (such as that it must involve organized labor) intact.

Finally, the definition in Section 13(c) is constrained by what Section 2 says about the purpose of Norris-LaGuardia. The purpose of limiting the courts' jurisdiction to issue injunctions is to protect employees engaged in collective bargaining. It's not to affect the rights of employees who are not engaged in collective bargaining.

(The owners rely on a 1938 Supreme Court case, New Negro Alliance, to bolster their argument that a "labor dispute" need not involve a union. In that case, the Court applied Norris-LaGuardia even though no union was involved. The players characterize New Negro Alliance as involving a collectively organized association of black employees who were shut out of traditional unions due to racial prejudice. So it wasn't technically a union, but it was the same idea. It did not involve a group of employees who decertified their union and expressed a desire to bargain individually rather than collectively, so it's pretty easily distinguishable from the current NFL situation. I have not read New Negro Alliance myself.)

"Growing out of."

For Norris-LaGuardia to apply, the case need not involve a labor dispute; it need only grow out of a labor dispute. Even if the NFLPA no longer exists as a union, the current NFL mess surely grew out of the dispute between the NFL and the NFLPA. Or not. The players argue that "growing out of a labor dispute" refers to which parties are involved in the dispute, not to the temporal sequence of events leading up to the dispute. See the definition in Section 13(a). It's not about temporal cause-and-effect chains — e.g., first there was a labor dispute, and then another dispute shortly followed as a result. Rather, it's about relationships between parties — e.g., during a labor dispute between NFL owners and players, NBA players decide to picket in support of the NFL players. The picketing would grow out of the labor dispute. Once a "labor dispute" no longer exists, however — as in the case of decertification — no secondary dispute can be said to "grow out of" the non-existent labor dispute. (Back to my paraphrase of section 13(a), the players might say that a case involves a labor dispute when it is between employers and employees, and that it grows out of a labor dispute when it involves parties more peripherally related to each other.) The case law on this point is apparently sparse. The players cite two Norris-LaGuardia cases (from other Circuits) refusing to hold that X grew out of Y, where X immediately followed and was logically related to Y, and Y was a labor dispute that had ended. They gloat that the owners cited zero cases for the contrary position.

"To remain in any relation of employment."

If Norris-LaGuardia does apply (because the dispute between NFL owners and players involves or grows out of a labor dispute), it blocks injunctions only that prohibit people "from ceasing or refusing to perform any work," or that force them "to remain in any relation of employment." The owners say that "any relation of employment" includes being an employer. The players say that it means, roughly, being in any state of being employed. Going by the text of Section 4(a), I like the owners' argument better. When I consider the language in Section 2, the players' argument grows on me just a little. A somewhat stronger argument for the players is that the language from Section 4(a) of Norris-LaGuardia parrots the language in Section 20 of the Clayton Act, and that same language in the Clayton Act had already been held to refer only to employees. Once statutory language has been interpreted a certain way, when Congress subsequently uses identical language in a second statute, courts generally assume that Congress intended it to mean the same thing in the second statute as it has come to mean in the first. Now I'm starting to see things more the players' way. But the knockout punch, IMO, is the fact that the owners are not in fact trying to avoid "remaining in any relation of employment" with the players. The lockout is not Bob Kraft's attempt to cut Tom Brady. When a new CBA is agreed to, Tom Brady will not be a free agent. Kraft and Brady are still in a relation of employment with each other even during the lockout. Moreover, many of the plaintiffs are not currently NFL employees — namely, the free agents and rookies. Lifting the lockout is not forcing the owners to "remain" in any relation of employment with them.

My take.

The 8th Circuit indicated in its ruling on the stay that it wasn't confident that Judge Nelson had jurisdiction to enjoin the lockout. In their brief opposing the stay request, the players really didn't focus on the jurisdictional issues very well, but they've remedied that misstep in their most recent brief. I think this brief has an excellent chance of overcoming the 8th Circuit's initial doubt regarding jurisdiction.

 

[Dinsy Ejotuz]

The 8th Circuit indicated in its ruling on the stay that it wasn't confident that Judge Nelson had jurisdiction to enjoin the lockout. In their brief opposing the stay request, the players really didn't focus on the jurisdictional arguments very well, but they've remedied that misstep in their most recent brief. I think this brief has an excellent chance of overcoming the 8th Circuit's initial doubt regarding jurisdiction.

How likely is it that judges who are philosophically inclined towards one party in a dispute, and who have previously ruled for that party, reverse their position based on a superior argument?Serious question, btw. Not a windup. It would be very nice to find that the judicial system works like that.ETA: And many thanks for offering us your time and legal expertise.

 

[Maurile Tremblay]

The 8th Circuit indicated in its ruling on the stay that it wasn't confident that Judge Nelson had jurisdiction to enjoin the lockout. In their brief opposing the stay request, the players really didn't focus on the jurisdictional arguments very well, but they've remedied that misstep in their most recent brief. I think this brief has an excellent chance of overcoming the 8th Circuit's initial doubt regarding jurisdiction.

How likely is it that judges who are philosophically inclined towards one party in a dispute, and who have previously ruled for that party, reverse their position based on a superior argument?Serious question, btw. Not a windup. It would be very nice to find that the judicial system works like that.

Judges are human, and are therefore subject to all the same biases as the rest of us. But their foremost concern is generally to get the law right. If you can persuade them that they are legally bound to rule a certain way, they will usually do it.

ETA: And many thanks for offering us your time and legal expertise.

My pleasure.

 

[Cripster]

The 8th Circuit indicated in its ruling on the stay that it wasn't confident that Judge Nelson had jurisdiction to enjoin the lockout. In their brief opposing the stay request, the players really didn't focus on the jurisdictional arguments very well, but they've remedied that misstep in their most recent brief. I think this brief has an excellent chance of overcoming the 8th Circuit's initial doubt regarding jurisdiction.

How likely is it that judges who are philosophically inclined towards one party in a dispute, and who have previously ruled for that party, reverse their position based on a superior argument?Serious question, btw. Not a windup. It would be very nice to find that the judicial system works like that.

Judges are human, and are therefore subject to all the same biases as the rest of us. But their foremost concern is generally to get the law right. If you can persuade them that they are legally bound to rule a certain way, they will usually do it.

ETA: And many thanks for offering us your time and legal expertise.

My pleasure.

Good stuff today. Though I side with the owners, I do feel it would be in everyones best interest for them to end the lockout. The anti-trust suit will be there regardless. However, there is a lot of pride there. Pash seems very certain from the start they would win in the eight circuit. I would like to think there were no politics in the courts. But, I am afraid there is.

 

[steelcitysledgehammers]

And if you are willing to go down the rabbit hole a little farther, what's the worst case scenario for the high revenue owners? The players win the antitrust case and the league gets blown up allowing the big revenue team to compete in a more baseball like money driven league. The players would be to blame and big revenue owners would get what some claim they've wanted all along. It's a win/win situation for the big revenue teams. /conspiracy theory

These are my thoughts, exactly.As we get closer to the reality of lost games, you'll start to see more moderates within the ownership group applying pressure to get a new deal done.I think this is one of the major oppositions the owners have to lifting the lockout. If that's done, then they have to come to an agreement amongst themselves about how the league will operate without a CBA and I think they recognize they cannot agree, as a group, on how to run the league. I personally think they're toeing the legal waters to settle an internal dispute about how the league should run. Depending on how the courts decide, it will decide the winners in the big-market/small-market dispute between the owners and lead to them agreeing on how to move forward, one way or another.While I recognize the owners legal right to do what they've done so far, morally they're on the wrong side of this argument. Instead of behaving as the custodians of the league, looking out for it's best interests moving forward, it's obvious there's a growing number who feel that revenues and profits trump parity and tradition. I disagree entirely and I know there are a handful of owners who still do as well. We are staring at a pivotal moment in league history. These owners have taken the cork out of a bottle without knowing if they can stopper it again. I fear this whole endeavor.J

 

[roarlions]

Can someone explain the whole scrambled eggs argument posed the owners regarding the irreparable harm that would be done to the league if the lock-out is lifted? Are they claiming that transactions completed after the lock-out is lifted would have to be reversed somehow or is that the transactions completed would somehow irreparably harm the league (e.g., by affecting parity and competitive balance)?

 

[Lucky Lefty]

realfann says: May 22, 2011 4:10 AM

"The players are happy with the old agreement. The CBA that they and the owners voluntarily signed in 2006.

We the fans are clearly happy with that deal. Revenue and interest in the game has gone up every year since 2006. This past NFL year has seen new records set for TV viewing. Even blogs like this one has large followings.

The owners are not happy. They want a new deal.

That’s fine but the onus is 100% on them to propose a deal that makes both the players & fans as happy as they were with the old deal. The owners want change, they have to convince us all that the change is good.

So, no, the players do not have to propose terms that could become a new CBA. From their (and our) point of view, the terms in the last CBA were perfectly good.

It’s ALL on the owners to persuade us all why they should make a bigger profit out of the NFL.

Something they have FAILED to do.

They’ve not even tried very hard. Most of the league’s rhetoric these days are diected at DeMaurice Smith.

For a thousand years its always been true that if you don’t have a very good argument, if your reasons are weak, if your logic is flawed, then attack the other person.

Attack the messanger if you cannot attack the message."

 

[Donnybrook]

The courts will eventually solve this dispute. News flash

 

[Wadsworth]

realfann says: May 22, 2011 4:10 AM"The players are happy with the old agreement. The CBA that they and the owners voluntarily signed in 2006.We the fans are clearly happy with that deal. Revenue and interest in the game has gone up every year since 2006. This past NFL year has seen new records set for TV viewing. Even blogs like this one has large followings.The owners are not happy. They want a new deal.That’s fine but the onus is 100% on them to propose a deal that makes both the players & fans as happy as they were with the old deal. The owners want change, they have to convince us all that the change is good.So, no, the players do not have to propose terms that could become a new CBA. From their (and our) point of view, the terms in the last CBA were perfectly good.It’s ALL on the owners to persuade us all why they should make a bigger profit out of the NFL.Something they have FAILED to do.They’ve not even tried very hard. Most of the league’s rhetoric these days are diected at DeMaurice Smith.For a thousand years its always been true that if you don’t have a very good argument, if your reasons are weak, if your logic is flawed, then attack the other person.Attack the messanger if you cannot attack the message."

That post states my position more clearly than I've been able to state it in the past. I keep waiting for the owners to justify their position, but instead I get letters from the Commish based on fear tactics, vague statements about losing money and a lot of stalling in the courts. The odd part is there's a decent chance I'd agree with the owners if I ever heard their explanation as I traditionally lean toward business in these types of disputes. But so far I've seen nothing from the owner to explain why the status quo isn't workable.

 

[Lucky Lefty]

realfann says: May 22, 2011 4:10 AM"The players are happy with the old agreement. The CBA that they and the owners voluntarily signed in 2006.We the fans are clearly happy with that deal. Revenue and interest in the game has gone up every year since 2006. This past NFL year has seen new records set for TV viewing. Even blogs like this one has large followings.The owners are not happy. They want a new deal.That’s fine but the onus is 100% on them to propose a deal that makes both the players & fans as happy as they were with the old deal. The owners want change, they have to convince us all that the change is good.So, no, the players do not have to propose terms that could become a new CBA. From their (and our) point of view, the terms in the last CBA were perfectly good.It’s ALL on the owners to persuade us all why they should make a bigger profit out of the NFL.Something they have FAILED to do.They’ve not even tried very hard. Most of the league’s rhetoric these days are directed at DeMaurice Smith.For a thousand years its always been true that if you don’t have a very good argument, if your reasons are weak, if your logic is flawed, then attack the other person.Attack the messanger if you cannot attack the message."

That post states my position more clearly than I've been able to state it in the past. I keep waiting for the owners to justify their position, but instead I get letters from the Commish based on fear tactics, vague statements about losing money and a lot of stalling in the courts. The odd part is there's a decent chance I'd agree with the owners if I ever heard their explanation as I traditionally lean toward business in these types of disputes. But so far I've seen nothing from the owner to explain why the status quo isn't workable.

Agree.. Gave me something to work with beside "the players getting more money than us in the old cba" speech. stop drinking the (kool-aid) folks...

 

[dparker713]

In March, at the expiration of the most recent NFL collective bargaining agreement, the NFL players decertified their union, and the NFL owners locked them out. The players immediately sued the owners on antitrust grounds and requested a preliminary injunction barring the lockout.

In April, a federal district court granted the preliminary injunction sought by the players. The owners immediately appealed, and asked the 8th Circuit to stay enforcement of the district court's injunction until after it could hear the appeal.

Earlier this month, a panel of three 8th Circuit judges granted the owners' request for a stay (in a 2–1 decision), in part because they were skeptical that the district court had proper jurisdiction to issue an injunction lifting the lockout.

The players filed their brief yesterday asking the 8th Circuit to uphold the district court's injunction on appeal. The jurisdictional issues over which the 8th Circuit expressed skepticism take center stage in that brief.

The Norris-LaGuardia Act.

The jurisdictional issues are governed by the Norris-LaGuardia Act. Here's my paraphrase of the relevant parts of the Act:

No court has jurisdiction to issue a temporary or permanent injunction, in any case involving or growing out of a labor dispute, to prohibit anyone from ceasing or refusing to perform any work or to remain in any relation of employment. (Section 1 and Section 4(a).) The purpose of this limitation on jurisdiction is to ensure that laborers are free from coercion by employers when engaged in collective bargaining. (Section 2.)

The term "labor dispute" includes any controversy concerning terms or conditions of employment. (Section 13(c).) A case involves or grows out of a labor dispute when it is between employers and employees, or when it involves parties more peripherally related to each other as long as they are in the same industry. (Section 13(a).)

(Here is the Norris-LaGuardia Act, so you can see where I'm getting this stuff. Click on "§ 101" to read Section 1, "§ 102" to read Section 2, etc.)The owners' argument.

The owners' argument is pretty straightforward. A labor dispute includes any controversy concerning terms or conditions of employment. The dispute between the NFL owners and players concerns terms of employment. It is therefore a labor dispute, or at least has grown out of a labor dispute. Judge Nelson therefore lacked jurisdiction to issue an injunction requiring the owners to remain in any relation of employment with the players. Lifting the lockout required the owners to remain in an employment relationship with the players. Therefore, Judge Nelson had no jurisdiction to issue an injunction lifting the lockout.

Very neat and tidy and syllogistic.

The players' argument.

The players' argument takes a lot more words to explain, but is ultimately quite persuasive, IMO.

"Labor dispute."

There is plenty of evidence that the term "labor dispute" is a legal term of art referring only to disputes involving unions. There are cases saying so, and legal textbooks ("hornbooks") by respected law professors, and the legislative history of the Norris-LaGuardia Act itself. The literal reading of Section 13(c)'s definition would bring ordinary breach-of-employment-contract cases within the ambit of Norris-LaGuardia, which is silly.

Moreover, Section 13(c) doesn't state that a labor dispute means any controversy concerning terms of employment, but that it includes such controversies. The word "includes" often functions to expand the normal meaning of a term in only one respect. To use the example from the players' brief, if an NFL television contract defines a "Monday Night Football game" as including any game originally scheduled to be played on Monday night (even if subsequently rescheduled), that doesn't mean it includes hockey games scheduled for Monday nights. In that example, "includes" functions to expand the definition of "Monday Night Football game" to encompass certain games not actually played on Monday nights, but it leaves the other limitations on what may qualify as a Monday Night Football game (such as that it must be a football game) intact. The same thing is going on in Section 13(c). It's expanding the ordinary definition of "labor dispute" to encompass disputes between parties other than employers and employees, but leaves other limitations on what may qualify as a labor dispute (such as that it must involve organized labor) intact.

Finally, the definition in Section 13(c) is constrained by what Section 2 says about the purpose of Norris-LaGuardia. The purpose of limiting the courts' jurisdiction to issue injunctions is to protect employees engaged in collective bargaining. It's not to affect the rights of employees who are not engaged in collective bargaining.

(The owners rely on a 1938 Supreme Court case, New Negro Alliance, to bolster their argument that a "labor dispute" need not involve a union. In that case, the Court applied Norris-LaGuardia even though no union was involved. The players characterize New Negro Alliance as involving a collectively organized association of black employees who were shut out of traditional unions due to racial prejudice. So it wasn't technically a union, but it was the same idea. It did not involve a group of employees who decertified their union and expressed a desire to bargain individually rather than collectively, so it's pretty easily distinguishable from the current NFL situation. I have not read New Negro Alliance myself.)

"Growing out of."

For Norris-LaGuardia to apply, the case need not involve a labor dispute; it need only grow out of a labor dispute. Even if the NFLPA no longer exists as a union, the current NFL mess surely grew out of the dispute between the NFL and the NFLPA. Or not. The players argue that "growing out of a labor dispute" refers to which parties are involved in the dispute, not to the temporal sequence of events leading up to the dispute. See the definition in Section 13(a). It's not about temporal cause-and-effect chains — e.g., first there was a labor dispute, and then another dispute shortly followed as a result. Rather, it's about relationships between parties — e.g., during a labor dispute between NFL owners and players, NBA players decide to picket in support of the NFL players. The picketing would grow out of the labor dispute. Once a "labor dispute" no longer exists, however — as in the case of decertification — no secondary dispute can be said to "grow out of" the non-existent labor dispute. (Back to my paraphrase of section 13(a), the players might say that a case involves a labor dispute when it is between employers and employees, and that it grows out of a labor dispute when it involves parties more peripherally related to each other.) The case law on this point is apparently sparse. The players cite two Norris-LaGuardia cases (from other Circuits) refusing to hold that X grew out of Y, where X immediately followed and was logically related to Y, and Y was a labor dispute that had ended. They gloat that the owners cited zero cases for the contrary position.

"To remain in any relation of employment."

If Norris-LaGuardia does apply (because the dispute between NFL owners and players involves or grows out of a labor dispute), it blocks injunctions only that prohibit people "from ceasing or refusing to perform any work," or that force them "to remain in any relation of employment." The owners say that "any relation of employment" includes being an employer. The players say that it means, roughly, being in any state of being employed. Going by the text of Section 4(a), I like the owners' argument better. When I consider the language in Section 2, the players' argument grows on me just a little. A somewhat stronger argument for the players is that the language from Section 4(a) of Norris-LaGuardia parrots the language in Section 20 of the Clayton Act, and that same language in the Clayton Act had already been held to refer only to employees. Once statutory language has been interpreted a certain way, when Congress subsequently uses identical language in a second statute, courts generally assume that Congress intended it to mean the same thing in the second statute as it has come to mean in the first. Now I'm starting to see things more the players' way. But the knockout punch, IMO, is the fact that the owners are not in fact trying to avoid "remaining in any relation of employment" with the players. The lockout is not Bob Kraft's attempt to cut Tom Brady. When a new CBA is agreed to, Tom Brady will not be a free agent. Kraft and Brady are still in a relation of employment with each other even during the lockout. Moreover, many of the plaintiffs are not currently NFL employees — namely, the free agents and rookies. Lifting the lockout is not forcing the owners to "remain" in any relation of employment with them.

My take.

The 8th Circuit indicated in its ruling on the stay that it wasn't confident that Judge Nelson had jurisdiction to enjoin the lockout. In their brief opposing the stay request, the players really didn't focus on the jurisdictional issues very well, but they've remedied that misstep in their most recent brief. I think this brief has an excellent chance of overcoming the 8th Circuit's initial doubt regarding jurisdiction.

I read section 2 as being somewhat irrelevant. The wording indicates this situation is outside any contemplated application of the law and should not be read to favor the players or the owners. And I think you're take on the players' 'knockout punch' isn't as persuasive as you make it out to be. While no, Kraft is not seeking an injunction to cut Tom Brady, he is seeking an injunction to suspend his employment contract with Tom Brady. He would retain the rights to employ Brady in the future. And I'd contend the language makes the FAs irrelevant. "any relation of employment" - the contracted players statisfy this clause and the effect on free agents is incidental. I'd guess this is how non-union employees in other lockouts are treated, though I haven't done the research on that.

On the whole, I think this case is proving just how poorly sports leagues fit into the current laws of the land. Considering how much revenue they generate, this is really an area that should receive legislative attention.

 

[dahogman]

In March, at the expiration of the most recent NFL collective bargaining agreement, the NFL players decertified their union, and the NFL owners locked them out. The players immediately sued the owners on antitrust grounds and requested a preliminary injunction barring the lockout.

In April, a federal district court granted the preliminary injunction sought by the players. The owners immediately appealed, and asked the 8th Circuit to stay enforcement of the district court's injunction until after it could hear the appeal.

Earlier this month, a panel of three 8th Circuit judges granted the owners' request for a stay (in a 2–1 decision), in part because they were skeptical that the district court had proper jurisdiction to issue an injunction lifting the lockout.

The players filed their brief yesterday asking the 8th Circuit to uphold the district court's injunction on appeal. The jurisdictional issues over which the 8th Circuit expressed skepticism take center stage in that brief.

The Norris-LaGuardia Act.

The jurisdictional issues are governed by the Norris-LaGuardia Act. Here's my paraphrase of the relevant parts of the Act:

No court has jurisdiction to issue a temporary or permanent injunction, in any case involving or growing out of a labor dispute, to prohibit anyone from ceasing or refusing to perform any work or to remain in any relation of employment. (Section 1 and Section 4(a).) The purpose of this limitation on jurisdiction is to ensure that laborers are free from coercion by employers when engaged in collective bargaining. (Section 2.)

The term "labor dispute" includes any controversy concerning terms or conditions of employment. (Section 13(c).) A case involves or grows out of a labor dispute when it is between employers and employees, or when it involves parties more peripherally related to each other as long as they are in the same industry. (Section 13(a).)

(Here is the Norris-LaGuardia Act, so you can see where I'm getting this stuff. Click on "§ 101" to read Section 1, "§ 102" to read Section 2, etc.)The owners' argument.

The owners' argument is pretty straightforward. A labor dispute includes any controversy concerning terms or conditions of employment. The dispute between the NFL owners and players concerns terms of employment. It is therefore a labor dispute, or at least has grown out of a labor dispute. Judge Nelson therefore lacked jurisdiction to issue an injunction requiring the owners to remain in any relation of employment with the players. Lifting the lockout required the owners to remain in an employment relationship with the players. Therefore, Judge Nelson had no jurisdiction to issue an injunction lifting the lockout.

Very neat and tidy and syllogistic.

The players' argument.

The players' argument takes a lot more words to explain, but is ultimately quite persuasive, IMO.

"Labor dispute."

There is plenty of evidence that the term "labor dispute" is a legal term of art referring only to disputes involving unions. There are cases saying so, and legal textbooks ("hornbooks") by respected law professors, and the legislative history of the Norris-LaGuardia Act itself. The literal reading of Section 13(c)'s definition would bring ordinary breach-of-employment-contract cases within the ambit of Norris-LaGuardia, which is silly.

Moreover, Section 13(c) doesn't state that a labor dispute means any controversy concerning terms of employment, but that it includes such controversies. The word "includes" often functions to expand the normal meaning of a term in only one respect. To use the example from the players' brief, if an NFL television contract defines a "Monday Night Football game" as including any game originally scheduled to be played on Monday night (even if subsequently rescheduled), that doesn't mean it includes hockey games scheduled for Monday nights. In that example, "includes" functions to expand the definition of "Monday Night Football game" to encompass certain games not actually played on Monday nights, but it leaves the other limitations on what may qualify as a Monday Night Football game (such as that it must be a football game) intact. The same thing is going on in Section 13(c). It's expanding the ordinary definition of "labor dispute" to encompass disputes between parties other than employers and employees, but leaves other limitations on what may qualify as a labor dispute (such as that it must involve organized labor) intact.

Finally, the definition in Section 13(c) is constrained by what Section 2 says about the purpose of Norris-LaGuardia. The purpose of limiting the courts' jurisdiction to issue injunctions is to protect employees engaged in collective bargaining. It's not to affect the rights of employees who are not engaged in collective bargaining.

(The owners rely on a 1938 Supreme Court case, New Negro Alliance, to bolster their argument that a "labor dispute" need not involve a union. In that case, the Court applied Norris-LaGuardia even though no union was involved. The players characterize New Negro Alliance as involving a collectively organized association of black employees who were shut out of traditional unions due to racial prejudice. So it wasn't technically a union, but it was the same idea. It did not involve a group of employees who decertified their union and expressed a desire to bargain individually rather than collectively, so it's pretty easily distinguishable from the current NFL situation. I have not read New Negro Alliance myself.)

"Growing out of."

For Norris-LaGuardia to apply, the case need not involve a labor dispute; it need only grow out of a labor dispute. Even if the NFLPA no longer exists as a union, the current NFL mess surely grew out of the dispute between the NFL and the NFLPA. Or not. The players argue that "growing out of a labor dispute" refers to which parties are involved in the dispute, not to the temporal sequence of events leading up to the dispute. See the definition in Section 13(a). It's not about temporal cause-and-effect chains — e.g., first there was a labor dispute, and then another dispute shortly followed as a result. Rather, it's about relationships between parties — e.g., during a labor dispute between NFL owners and players, NBA players decide to picket in support of the NFL players. The picketing would grow out of the labor dispute. Once a "labor dispute" no longer exists, however — as in the case of decertification — no secondary dispute can be said to "grow out of" the non-existent labor dispute. (Back to my paraphrase of section 13(a), the players might say that a case involves a labor dispute when it is between employers and employees, and that it grows out of a labor dispute when it involves parties more peripherally related to each other.) The case law on this point is apparently sparse. The players cite two Norris-LaGuardia cases (from other Circuits) refusing to hold that X grew out of Y, where X immediately followed and was logically related to Y, and Y was a labor dispute that had ended. They gloat that the owners cited zero cases for the contrary position.

"To remain in any relation of employment."

If Norris-LaGuardia does apply (because the dispute between NFL owners and players involves or grows out of a labor dispute), it blocks injunctions only that prohibit people "from ceasing or refusing to perform any work," or that force them "to remain in any relation of employment." The owners say that "any relation of employment" includes being an employer. The players say that it means, roughly, being in any state of being employed. Going by the text of Section 4(a), I like the owners' argument better. When I consider the language in Section 2, the players' argument grows on me just a little. A somewhat stronger argument for the players is that the language from Section 4(a) of Norris-LaGuardia parrots the language in Section 20 of the Clayton Act, and that same language in the Clayton Act had already been held to refer only to employees. Once statutory language has been interpreted a certain way, when Congress subsequently uses identical language in a second statute, courts generally assume that Congress intended it to mean the same thing in the second statute as it has come to mean in the first. Now I'm starting to see things more the players' way. But the knockout punch, IMO, is the fact that the owners are not in fact trying to avoid "remaining in any relation of employment" with the players. The lockout is not Bob Kraft's attempt to cut Tom Brady. When a new CBA is agreed to, Tom Brady will not be a free agent. Kraft and Brady are still in a relation of employment with each other even during the lockout. Moreover, many of the plaintiffs are not currently NFL employees — namely, the free agents and rookies. Lifting the lockout is not forcing the owners to "remain" in any relation of employment with them.

My take.

The 8th Circuit indicated in its ruling on the stay that it wasn't confident that Judge Nelson had jurisdiction to enjoin the lockout. In their brief opposing the stay request, the players really didn't focus on the jurisdictional issues very well, but they've remedied that misstep in their most recent brief. I think this brief has an excellent chance of overcoming the 8th Circuit's initial doubt regarding jurisdiction.

I read section 2 as being somewhat irrelevant. The wording indicates this situation is outside any contemplated application of the law and should not be read to favor the players or the owners. And I think you're take on the players' 'knockout punch' isn't as persuasive as you make it out to be. While no, Kraft is not seeking an injunction to cut Tom Brady, he is seeking an injunction to suspend his employment contract with Tom Brady. He would retain the rights to employ Brady in the future. And I'd contend the language makes the FAs irrelevant. "any relation of employment" - the contracted players statisfy this clause and the effect on free agents is incidental. I'd guess this is how non-union employees in other lockouts are treated, though I haven't done the research on that.

On the whole, I think this case is proving just how poorly sports leagues fit into the current laws of the land. Considering how much revenue they generate, this is really an area that should receive legislative attention.

 

[dahogman]

I have spent years following the NFL and over 25 years playing fantasy football. I believe that most fans who completely support the players are doing so simply because they wish to see football. While understandable, what the players are seeking will change the foundation of how the league has evolved over the past twenty years, ie. no draft, unrestricted free agency, and no salary cap. While this system most certainly will increase the salaries of the superstars of the league, it will hurt the vast majority of players and teams. While everyone is discussing the salary cap, no one is discussing the minimum salaries that each team must pay. The small market teams will reduce salaries down to the point where they can continue to make a profit. The reason the NFL is the NFL is the revenue sharing that exists amongst owners. This keeps large market teams from buying championships and allows small market teams to compete. Without a CBA, do you really think that revenue sharing will continue to exist? In MLB, the Yankees make 200 million/yr more than the Pirates and Royals. The best chance for football to continue is for the owners to prevail with the June court date. This will force both sides to look for some middle ground for a CBA. In a CBA neither side is going to be completely happy or unhappy. If the courts impose a solution, there will be one winner and one loser. That will change the game we love forever.

 

[CalBear]

I have spent years following the NFL and over 25 years playing fantasy football. I believe that most fans who completely support the players are doing so simply because they wish to see football. While understandable, what the players are seeking will change the foundation of how the league has evolved over the past twenty years, ie. no draft, unrestricted free agency, and no salary cap. While this system most certainly will increase the salaries of the superstars of the league, it will hurt the vast majority of players and teams. While everyone is discussing the salary cap, no one is discussing the minimum salaries that each team must pay. The small market teams will reduce salaries down to the point where they can continue to make a profit. The reason the NFL is the NFL is the revenue sharing that exists amongst owners. This keeps large market teams from buying championships and allows small market teams to compete. Without a CBA, do you really think that revenue sharing will continue to exist? In MLB, the Yankees make 200 million/yr more than the Pirates and Royals. The best chance for football to continue is for the owners to prevail with the June court date. This will force both sides to look for some middle ground for a CBA. In a CBA neither side is going to be completely happy or unhappy. If the courts impose a solution, there will be one winner and one loser. That will change the game we love forever.

It's not at all clear whether the owners winning or the players winning will lead to a CBA sooner. But to characterize the lawsuit as the players wanting the courts to impose a solution is inaccurate. The lawsuit exists to put pressure on the owners to agree to a CBA that is more in the players' interests. The players certainly aren't interested in getting rid of salary floors, long-term, or many of the other things listed in the lawsuit; they're just telling the owners that running the NFL requires their cooperation.

 

[dahogman]

What exactly have the players proposed that is different from the status quo that shows they do not want the courts to impose everything that is in their brief? Their stance is that everything should stay exactly as is or we will take you to court and blow up the game as we know it. Is it really that hard to believe that over the last 5 years economics for the owners have changed?

 

[CalBear]

What exactly have the players proposed that is different from the status quo that shows they do not want the courts to impose everything that is in their brief? Their stance is that everything should stay exactly as is or we will take you to court and blow up the game as we know it. Is it really that hard to believe that over the last 5 years economics for the owners have changed?

Over the last 5 years the NFL has had a huge increase in popularity and revenue, so it's hard to believe that the players need to give back anything to protect the owners.

 

[renesauz]

realfann says: May 22, 2011 4:10 AM

"The players are happy with the old agreement. The CBA that they and the owners voluntarily signed in 2006.

We the fans are clearly happy with that deal. Revenue and interest in the game has gone up every year since 2006. This past NFL year has seen new records set for TV viewing. Even blogs like this one has large followings.

The owners are not happy. They want a new deal.

That’s fine but the onus is 100% on them to propose a deal that makes both the players & fans as happy as they were with the old deal. The owners want change, they have to convince us all that the change is good.

So, no, the players do not have to propose terms that could become a new CBA. From their (and our) point of view, the terms in the last CBA were perfectly good.

It’s ALL on the owners to persuade us all why they should make a bigger profit out of the NFL.

Something they have FAILED to do.

They’ve not even tried very hard. Most of the league’s rhetoric these days are diected at DeMaurice Smith.

For a thousand years its always been true that if you don’t have a very good argument, if your reasons are weak, if your logic is flawed, then attack the other person.

Attack the messanger if you cannot attack the message."

I have a really hard time with the bolded phrase. It makes no sense at all, bordering instead on the juvenile. IN EVERY labor deal, one side is going to walk away less happy than they had it in the previous deal. It's beyond absurd to assume that the less happy party should always be the owners or businessmen.The owners have spent so little time trying to prove they need the money because its blatantly obvious that no proof will suffice. The players, and apparently many of their fans, simply don't give a rats behind about owners problems and would rather screw the owners over given the chance.

 

[Dinsy Ejotuz]

If detailed financial statements aren't the way for the two sides to come to agreement about what's 'fair' what method do you propose?

 

[Wadsworth]

realfann says: May 22, 2011 4:10 AM

"The players are happy with the old agreement. The CBA that they and the owners voluntarily signed in 2006.

We the fans are clearly happy with that deal. Revenue and interest in the game has gone up every year since 2006. This past NFL year has seen new records set for TV viewing. Even blogs like this one has large followings.

The owners are not happy. They want a new deal.

That’s fine but the onus is 100% on them to propose a deal that makes both the players & fans as happy as they were with the old deal. The owners want change, they have to convince us all that the change is good.

So, no, the players do not have to propose terms that could become a new CBA. From their (and our) point of view, the terms in the last CBA were perfectly good.

It’s ALL on the owners to persuade us all why they should make a bigger profit out of the NFL.

Something they have FAILED to do.

They’ve not even tried very hard. Most of the league’s rhetoric these days are diected at DeMaurice Smith.

For a thousand years its always been true that if you don’t have a very good argument, if your reasons are weak, if your logic is flawed, then attack the other person.

Attack the messanger if you cannot attack the message."

I have a really hard time with the bolded phrase. It makes no sense at all, bordering instead on the juvenile. IN EVERY labor deal, one side is going to walk away less happy than they had it in the previous deal. It's beyond absurd to assume that the less happy party should always be the owners or businessmen.The owners have spent so little time trying to prove they need the money because its blatantly obvious that no proof will suffice. The players, and apparently many of their fans, simply don't give a rats behind about owners problems and would rather screw the owners over given the chance.

I don't assume that the less happy party should be the owners. I have no interest in screwing the owners over. But when one party comes to the table and says the past deal won't work for us, we need more money. It seems reasonably for the other party to ask why, especially when all outside indicators point towards huge profitability.

 

[Andrew Garda]

realfann says: May 22, 2011 4:10 AM

"The players are happy with the old agreement. The CBA that they and the owners voluntarily signed in 2006.

We the fans are clearly happy with that deal. Revenue and interest in the game has gone up every year since 2006. This past NFL year has seen new records set for TV viewing. Even blogs like this one has large followings.

The owners are not happy. They want a new deal.

That's fine but the onus is 100% on them to propose a deal that makes both the players & fans as happy as they were with the old deal. The owners want change, they have to convince us all that the change is good.

So, no, the players do not have to propose terms that could become a new CBA. From their (and our) point of view, the terms in the last CBA were perfectly good.

It's ALL on the owners to persuade us all why they should make a bigger profit out of the NFL.

Something they have FAILED to do.

They've not even tried very hard. Most of the league's rhetoric these days are diected at DeMaurice Smith.

For a thousand years its always been true that if you don't have a very good argument, if your reasons are weak, if your logic is flawed, then attack the other person.

Attack the messanger if you cannot attack the message."

I have a really hard time with the bolded phrase. It makes no sense at all, bordering instead on the juvenile. IN EVERY labor deal, one side is going to walk away less happy than they had it in the previous deal. It's beyond absurd to assume that the less happy party should always be the owners or businessmen.The owners have spent so little time trying to prove they need the money because its blatantly obvious that no proof will suffice. The players, and apparently many of their fans, simply don't give a rats behind about owners problems and would rather screw the owners over given the chance.

I think you're assigning a lot of malicious intent on the players. I would opine that the owners aren't showing ten years of financials because a) they don't want to show the other owners their cash books and /or b) it would ruin their case.You're talking about an industry which - by all appearances - is nearly printing money. Now could some teams be really close to the edge? Absolutely. And for sure costs are rising.

But for the most part, this is a league which - outwardly - appears to be just fine. So if that's the case, why are they crying poor? The owners don't seem to have acted in good faith on several issues. I don't know why it's shocking the players don't trust them.

 

[Idiot Boxer]

I have spent years following the NFL and over 25 years playing fantasy football. I believe that most fans who completely support the players are doing so simply because they wish to see football. While understandable, what the players are seeking will change the foundation of how the league has evolved over the past twenty years, ie. no draft, unrestricted free agency, and no salary cap. While this system most certainly will increase the salaries of the superstars of the league, it will hurt the vast majority of players and teams. While everyone is discussing the salary cap, no one is discussing the minimum salaries that each team must pay. The small market teams will reduce salaries down to the point where they can continue to make a profit. The reason the NFL is the NFL is the revenue sharing that exists amongst owners. This keeps large market teams from buying championships and allows small market teams to compete. Without a CBA, do you really think that revenue sharing will continue to exist? In MLB, the Yankees make 200 million/yr more than the Pirates and Royals. The best chance for football to continue is for the owners to prevail with the June court date. This will force both sides to look for some middle ground for a CBA. In a CBA neither side is going to be completely happy or unhappy. If the courts impose a solution, there will be one winner and one loser. That will change the game we love forever.

It's not at all clear whether the owners winning or the players winning will lead to a CBA sooner. But to characterize the lawsuit as the players wanting the courts to impose a solution is inaccurate. The lawsuit exists to put pressure on the owners to agree to a CBA that is more in the players' interests. The players certainly aren't interested in getting rid of salary floors, long-term, or many of the other things listed in the lawsuit; they're just telling the owners that running the NFL requires their cooperation.

And this is ultimately why I think the Owner's prevail in the 8th Circuit on the stay.When you read the players complaint / statements about the complaint / brief regarding the stay altogether, what you get is that this decertification is designed solely for the players to be able to gain leverage in the negotiation of a new CBA with the union. It seems to me that when the lockout is merely a negotiation strategy of the union - whether it currently exists or not - the players have a hard time making a straight faced argument that this dispute in not a labor dispute or one growing out of a labor dispute.

 

[Dinsy Ejotuz]

And this is ultimately why I think the Owner's prevail in the 8th Circuit on the stay.

When you read the players complaint / statements about the complaint / brief regarding the stay altogether, what you get is that this decertification is designed solely for the players to be able to gain leverage in the negotiation of a new CBA with the union. It seems to me that when the lockout is merely a negotiation strategy of the union - whether it currently exists or not - the players have a hard time making a straight faced argument that this dispute in not a labor dispute or one growing out of a labor dispute.

IBoxer, no secret that I don't agree with your starting point - but it's nice to have someone who can argue the owners' POV using actual facts, actual law and logical arguments.