Labor Dispute Master Thread (2 Viewers)

[GroveDiesel]

Daniel Kaplan is saying the NFL has a "working group" crafting new FA rules for 2011 that will differ from 2010, but will likely not "alter the onfield game". My question is, why wasn't this CRAFTED months ago???

Sounds like one of their first steps could be to hand over all drug testing to the WADA. That has to be pretty scary for a LOT of NFL players. And I'm not sure that it's something the courts would even end up taking major issue with.

 

[GroveDiesel]

You either don't know or dont care to know that the lockout was happening decert or no. I am not pro-player, btw.

This is quite possibly true, but a lockout is a temporary stoppage quickly remedied by a CBA. A decertification makes a CBA problematic and throws everything into the courts, where many institutions the NFL considers central to success can be challenged. A lockout could end in a week. The mess of decertification could take YEARS to unravel.

Decertification may be quickly remedied by a new CBA; it could end in a week. A lockout could take years to resolve.

These court case can be resolved in a day? Really? That can only happen with a recertification, a new CBA, and an agreement to drop them. The players won't do that if they think they're winning in the courts. How would a lockout take years to resolve? It ends the second the owners say it ends...it needs no courts, no lawyers. It just needs players to come back to the table and NEGOTIATE.

I didn't say anything about a court case. But since you asked: yes, really. The court case can be dismissed in a day. It ends the second the players say it ends. It just needs the owners to come back to the table and NEGOTIATE.

I would disagree with the last sentence. Negotiation takes two parties and I don't think either party is willing to move an inch at this point. At this point, the only way the players end the suit is if all their demands are met IMO.

 

[Maurile Tremblay]

Daniel Kaplan is saying the NFL has a "working group" crafting new FA rules for 2011 that will differ from 2010, but will likely not "alter the onfield game". My question is, why wasn't this CRAFTED months ago???

Sounds like one of their first steps could be to hand over all drug testing to the WADA. That has to be pretty scary for a LOT of NFL players. And I'm not sure that it's something the courts would even end up taking major issue with.

Yeah, reasonable drug-testing rules should be safe.There are certain areas where we want teams to cooperate with each other, like in setting a schedule and making rules. There are other areas where we want teams to compete with each other, like in selling apparel, or in signing free agents.

The first category generally survives antitrust scrutiny, while the second category may not.

Drug-testing pretty clearly falls in the first category.

 

[zadok]

Daniel Kaplan is saying the NFL has a "working group" crafting new FA rules for 2011 that will differ from 2010, but will likely not "alter the onfield game". My question is, why wasn't this CRAFTED months ago???

Sounds like one of their first steps could be to hand over all drug testing to the WADA. That has to be pretty scary for a LOT of NFL players. And I'm not sure that it's something the courts would even end up taking major issue with.

This subject is something the players are complete idiots to challenge.

 

[CalBear]

Daniel Kaplan is saying the NFL has a "working group" crafting new FA rules for 2011 that will differ from 2010, but will likely not "alter the onfield game". My question is, why wasn't this CRAFTED months ago???

Sounds like one of their first steps could be to hand over all drug testing to the WADA. That has to be pretty scary for a LOT of NFL players. And I'm not sure that it's something the courts would even end up taking major issue with.

This subject is something the players are complete idiots to challenge.

The thing is, they're probably bluffing. The owners don't really want drug testing.

 

[Maurile Tremblay]

You either don't know or dont care to know that the lockout was happening decert or no. I am not pro-player, btw.

This is quite possibly true, but a lockout is a temporary stoppage quickly remedied by a CBA. A decertification makes a CBA problematic and throws everything into the courts, where many institutions the NFL considers central to success can be challenged. A lockout could end in a week. The mess of decertification could take YEARS to unravel.

Decertification may be quickly remedied by a new CBA; it could end in a week. A lockout could take years to resolve.

These court case can be resolved in a day? Really? That can only happen with a recertification, a new CBA, and an agreement to drop them. The players won't do that if they think they're winning in the courts. How would a lockout take years to resolve? It ends the second the owners say it ends...it needs no courts, no lawyers. It just needs players to come back to the table and NEGOTIATE.

I didn't say anything about a court case. But since you asked: yes, really. The court case can be dismissed in a day. It ends the second the players say it ends. It just needs the owners to come back to the table and NEGOTIATE.

I would disagree with the last sentence. Negotiation takes two parties and I don't think either party is willing to move an inch at this point. At this point, the only way the players end the suit is if all their demands are met IMO.

I know it takes two parties; I was just using the same sentence-construction as renesauz. The point was that if my statement is oversimplified, so is his.

 

[Wadsworth]

There's a lot of speculation on a lot of issues going on right now. To me the key question currently is what do the owners do if they lose the appeal? Will they continue to stall? Close the NFL? Compromise enough to get a deal done? Is there another appeal possibility?

 

[Maurile Tremblay]

There's a lot of speculation on a lot of issues going on right now. To me the key question currently is what do the owners do if they lose the appeal? Will they continue to stall? Close the NFL? Compromise enough to get a deal done? Is there another appeal possibility?

If the owners lose this appeal, they could appeal again; but they'd be less likely to get a stay pending further appeals, so the lockout would likely still be lifted. My guess is that they'd set some rules for 2011 that are somewhat similar to the rules for 2010; and in the meantime (a) try to win at trial on the actual antitrust claims (the current appeal concerns only the preliminary injunction against the lockout, not the validity of the actual antitrust claims); and (b) try to negotiate a new CBA.

 

[Idiot Boxer]

I think he means during the pendency of the action. If I remember references correctly, there were many years that there was no CBA. How did the NFL set rules that most think were anti-competitive during the time when there was no CBA and the actions were pending?

I think it was from 1989 to 1993.Without a CBA, the owners can set whatever rules they want. If those rules run afoul of antitrust laws, they'll have to pay damages. But that doesn't occur until after things are adjudicated, and that generally takes a while. In the meantime, the owners make whatever rules they want.So last time, they kept the draft, restrictions on free agency, and everything else they felt like. Then, before any final judgment was executed, they settled by agreeing to a new CBA.The same thing would likely happen this time. If the lockout is lifted and there's no new CBA for 2011, I suspect that the owners would use the same rules as they did in 2010. (Although if I were advising them, I'd have them, at the very least, go back to four years for unrestricted free agency instead of six.) Then, in a year or two, they'll agree to a new CBA to avoid paying antitrust damages.

Does anyone think that such would continue to be allowed today? I do not. I think that now that the stopper is out of the bottle and that since this decertification was over nothing more than money that a single player who doesn't like his draft position would blow up the draft if the NFL tried to operate past this year w/o a CBA.

Without a preliminary injunction against the draft, the draft can still survive for a few years even if it's obviously illegal.

I think the shine is off this apple now. Now that we run to court for issues no more noble than a bigger piece of the revenue pie, I see no reason why an Andrew Luck wouldn't immediately challenge the rights of a team that drafts him (say, for arguments sake, Carolina) when a large market team might be willing to pay a lot more for his services (say, Dallas, after they outbid everyone for Nnamdi this year and Romo comes up short again).

 

[D.J.]

There's a lot of speculation on a lot of issues going on right now. To me the key question currently is what do the owners do if they lose the appeal? Will they continue to stall? Close the NFL? Compromise enough to get a deal done? Is there another appeal possibility?

While possible, I think another appeal would send it to the supreme court, something that I remember reading was unlikely to happen because the supreme court would not agree to hear the case. I read about it a couple months ago and couldnt begin to know where I read it, so sorry for no link.

 

[Idiot Boxer]

There's a lot of speculation on a lot of issues going on right now. To me the key question currently is what do the owners do if they lose the appeal? Will they continue to stall? Close the NFL? Compromise enough to get a deal done? Is there another appeal possibility?

While possible, I think another appeal would send it to the supreme court, something that I remember reading was unlikely to happen because the supreme court would not agree to hear the case. I read about it a couple months ago and couldnt begin to know where I read it, so sorry for no link.

I think that it is someone's speculation that the Supreme Court wouldn't hear the case. While I agree with that speculation, I don't think that it is pre-determined.

 

[Maurile Tremblay]

There's a lot of speculation on a lot of issues going on right now. To me the key question currently is what do the owners do if they lose the appeal? Will they continue to stall? Close the NFL? Compromise enough to get a deal done? Is there another appeal possibility?

While possible, I think another appeal would send it to the supreme court, something that I remember reading was unlikely to happen because the supreme court would not agree to hear the case. I read about it a couple months ago and couldnt begin to know where I read it, so sorry for no link.

The first step would likely be to petition the 8th Circuit for a rehearing en banc (meaning with all 11 judges instead of just 3 of them). After that, they could appeal to the US Supreme Court. I agree that the Supreme Court would be very unlikely to hear the case.

 

[Maurile Tremblay]

There's a lot of speculation on a lot of issues going on right now. To me the key question currently is what do the owners do if they lose the appeal? Will they continue to stall? Close the NFL? Compromise enough to get a deal done? Is there another appeal possibility?

While possible, I think another appeal would send it to the supreme court, something that I remember reading was unlikely to happen because the supreme court would not agree to hear the case. I read about it a couple months ago and couldnt begin to know where I read it, so sorry for no link.

I think that it is someone's speculation that the Supreme Court wouldn't hear the case. While I agree with that speculation, I don't think that it is pre-determined.

Yes, but at this stage, we're just talking about a preliminary injunction. I really don't think the Supreme Court will bother itself with that.They may ultimately hear an appeal concerning the antitrust issues, but that's way down the line . . .

 

[Idiot Boxer]

There's a lot of speculation on a lot of issues going on right now. To me the key question currently is what do the owners do if they lose the appeal? Will they continue to stall? Close the NFL? Compromise enough to get a deal done? Is there another appeal possibility?

While possible, I think another appeal would send it to the supreme court, something that I remember reading was unlikely to happen because the supreme court would not agree to hear the case. I read about it a couple months ago and couldnt begin to know where I read it, so sorry for no link.

I think that it is someone's speculation that the Supreme Court wouldn't hear the case. While I agree with that speculation, I don't think that it is pre-determined.

Yes, but at this stage, we're just talking about a preliminary injunction. I really don't think the Supreme Court will bother itself with that.They may ultimately hear an appeal concerning the antitrust issues, but that's way down the line . . .

Certainly more likely than them hearing this one, though I'd even put that at a good bit under 50%

 

[renesauz]

Daniel Kaplan is saying the NFL has a "working group" crafting new FA rules for 2011 that will differ from 2010, but will likely not "alter the onfield game". My question is, why wasn't this CRAFTED months ago???

Sounds like one of their first steps could be to hand over all drug testing to the WADA. That has to be pretty scary for a LOT of NFL players. And I'm not sure that it's something the courts would even end up taking major issue with.

 

[jbobbett]

So last time, they kept the draft, restrictions on free agency, and everything else they felt like. Then, before any final judgment was executed, they settled by agreeing to a new CBA.The same thing would likely happen this time. If the lockout is lifted and there's no new CBA for 2011, I suspect that the owners would use the same rules as they did in 2010. (Although if I were advising them, I'd have them, at the very least, go back to four years for unrestricted free agency instead of six.) Then, in a year or two, they'll agree to a new CBA to avoid paying antitrust damages.

I really doubt it will happen like that. You think the owners will move forward with a "year or two" of football and try to negotiate a CBA with treble damages hanging over their heads if they don't get an agreement? That sounds suicidal to me.I'm really not understanding how all this went down last time. This can't be right.

 

[zadok]

I really doubt it will happen like that. You think the owners will move forward with a "year or two" of football and try to negotiate a CBA with treble damages hanging over their heads if they don't get an agreement? That sounds suicidal to me.

What's suicidal is no football and losing billions.

 

[Raiderfan32904]

Doesn't surprise me at all to finally hear some negative feedback on these rouge minicamps.

A.J. Hawk hears player-organized workouts are a “disaster”Posted by Gregg Rosenthal on May 9, 2011, 11:31 AM EDT Getty ImagesWe’ve been writing a lot about the player-organized workouts going on across the league, from the big get together in New Orleans to smaller affairs elsewhere.Packers linebacker A.J. Hawk has heard about them too, and wonders how much good they are doing.“I’ve heard that different guys’ workouts from different teams have just been a disaster. They’re working out at bad high school fields and equipment and all that kind of stuff,” Hawk told Lori Nickel of the Milwaukee Journal-Sentinel.Hawk, who says he will be fully recovered from wrist surgery in time for training camp, doesn’t see a great value to the practices for defensive players.“The most the defense can do when we get together is seven-on-seven. I can understand quarterbacks throwing to receivers and stuff like that. I think it’s more of a camaraderie thing. . . . We’re all ready to come back. We never got out of shape. The player gatherings are a good thing to get together and be with your teammates – that’s the most I would take from it.”Hawk’s point is well taken; this isn’t the 1970′s. Most players are going to stay in condition and you can’t simulate the installation of schemes without coaches.Some flowery stories will probably be written after the fact about how lockout practices forged special bonds and led to victories.Talent and continuity will matter a lot more to teams when the lockout ends. The Packers have plenty of both.

http://profootballtalk.nbcsports.com/2011/05/09/a-j-hawk-hears-player-organized-workouts-are-a-disaster/

 

[jbobbett]

I really doubt it will happen like that. You think the owners will move forward with a "year or two" of football and try to negotiate a CBA with treble damages hanging over their heads if they don't get an agreement? That sounds suicidal to me.

What's suicidal is no football and losing billions.

So you would advise the owners to proceed with no CBA rather than pursue the lockout? They don't seem to agree with you.

 

[zadok]

I really doubt it will happen like that. You think the owners will move forward with a "year or two" of football and try to negotiate a CBA with treble damages hanging over their heads if they don't get an agreement? That sounds suicidal to me.

What's suicidal is no football and losing billions.

So you would advise the owners to proceed with no CBA rather than pursue the lockout? They don't seem to agree with you.

You're right, they are cool with making no money.

 

[Raiderfan32904]

I really doubt it will happen like that. You think the owners will move forward with a "year or two" of football and try to negotiate a CBA with treble damages hanging over their heads if they don't get an agreement? That sounds suicidal to me.

What's suicidal is no football and losing billions.

So you would advise the owners to proceed with no CBA rather than pursue the lockout? They don't seem to agree with you.

You're right, they are cool with making no money.

If they play under the 2010 CBA, they'd get $4.2B instead of the $5.7BThey will play football to get their $4.2B if they have to. It'd be insane not to. The season will not be lost, no way. This is business, nothing personal.

Last year$9 billion total$4.2 billion to owners ($1 billion plus 40% of the remaining $8 billion)$4.8 billion to players (60% of the $8 billion)Owner’s proposal$9 billion total$5.7 billion to owners ($2.4 billion plus 50% of the remaining $6.6 billion)$3.3 billion to players (50% of the $6.6 billion)

 

[cobalt_27]

Doesn't surprise me at all to finally hear some negative feedback on these rouge minicamps.

A.J. Hawk hears player-organized workouts are a “disaster”Posted by Gregg Rosenthal on May 9, 2011, 11:31 AM EDT Getty ImagesWe’ve been writing a lot about the player-organized workouts going on across the league, from the big get together in New Orleans to smaller affairs elsewhere.Packers linebacker A.J. Hawk has heard about them too, and wonders how much good they are doing.“I’ve heard that different guys’ workouts from different teams have just been a disaster. They’re working out at bad high school fields and equipment and all that kind of stuff,” Hawk told Lori Nickel of the Milwaukee Journal-Sentinel.Hawk, who says he will be fully recovered from wrist surgery in time for training camp, doesn’t see a great value to the practices for defensive players.“The most the defense can do when we get together is seven-on-seven. I can understand quarterbacks throwing to receivers and stuff like that. I think it’s more of a camaraderie thing. . . . We’re all ready to come back. We never got out of shape. The player gatherings are a good thing to get together and be with your teammates – that’s the most I would take from it.”Hawk’s point is well taken; this isn’t the 1970′s. Most players are going to stay in condition and you can’t simulate the installation of schemes without coaches.Some flowery stories will probably be written after the fact about how lockout practices forged special bonds and led to victories.Talent and continuity will matter a lot more to teams when the lockout ends. The Packers have plenty of both.

http://profootballtalk.nbcsports.com/2011/05/09/a-j-hawk-hears-player-organized-workouts-are-a-disaster/

Just wait until someone gets injured. I'm sure that will go over real well in an unsupervised practice/workout.

 

[Raiderfan32904]

Doesn't surprise me at all to finally hear some negative feedback on these rouge minicamps.

A.J. Hawk hears player-organized workouts are a “disaster”Posted by Gregg Rosenthal on May 9, 2011, 11:31 AM EDT Getty ImagesWe’ve been writing a lot about the player-organized workouts going on across the league, from the big get together in New Orleans to smaller affairs elsewhere.Packers linebacker A.J. Hawk has heard about them too, and wonders how much good they are doing.“I’ve heard that different guys’ workouts from different teams have just been a disaster. They’re working out at bad high school fields and equipment and all that kind of stuff,” Hawk told Lori Nickel of the Milwaukee Journal-Sentinel.Hawk, who says he will be fully recovered from wrist surgery in time for training camp, doesn’t see a great value to the practices for defensive players.“The most the defense can do when we get together is seven-on-seven. I can understand quarterbacks throwing to receivers and stuff like that. I think it’s more of a camaraderie thing. . . . We’re all ready to come back. We never got out of shape. The player gatherings are a good thing to get together and be with your teammates – that’s the most I would take from it.”Hawk’s point is well taken; this isn’t the 1970′s. Most players are going to stay in condition and you can’t simulate the installation of schemes without coaches.Some flowery stories will probably be written after the fact about how lockout practices forged special bonds and led to victories.Talent and continuity will matter a lot more to teams when the lockout ends. The Packers have plenty of both.

http://profootballtalk.nbcsports.com/2011/05/09/a-j-hawk-hears-player-organized-workouts-are-a-disaster/

Just wait until someone gets injured. I'm sure that will go over real well in an unsupervised practice/workout.

I made a big fuss/stink about this a few pages deeper in this thread, and most everyone thought I was overreacting/overblowing the risks.

 

[cobalt_27]

Just wait until someone gets injured. I'm sure that will go over real well in an unsupervised practice/workout.

I made a big fuss/stink about this a few pages deeper in this thread, and most everyone thought I was overreacting/overblowing the risks.

Seems pretty naive disregard this as a possibility. Somebody is GOING to get injured while practicing. The way the media may portray it, valid or not, is that these practices were unsupervised. If this happens to a few players, it's going to present sort of a p.r. problem for both players and owners, further fueling how sick of this we all are.

 

[CalBear]

Seems pretty naive disregard this as a possibility. Somebody is GOING to get injured while practicing. The way the media may portray it, valid or not, is that these practices were unsupervised. If this happens to a few players, it's going to present sort of a p.r. problem for both players and owners, further fueling how sick of this we all are.

It's no different than any other activity players engage in in the off-season to keep in shape. Sometimes people get injured playing basketball or beach football or whatever; it happens.

 

[cobalt_27]

Seems pretty naive disregard this as a possibility. Somebody is GOING to get injured while practicing. The way the media may portray it, valid or not, is that these practices were unsupervised. If this happens to a few players, it's going to present sort of a p.r. problem for both players and owners, further fueling how sick of this we all are.

It's no different than any other activity players engage in in the off-season to keep in shape. Sometimes people get injured playing basketball or beach football or whatever; it happens.

I wasn't being critical of the players. I'm pointing out the very real possibility that players will get hurt during these practices, and it may be--probably will be painted by the media as the result of being unsupervised. Do you really disagree with this?

 

[CalBear]

Seems pretty naive disregard this as a possibility. Somebody is GOING to get injured while practicing. The way the media may portray it, valid or not, is that these practices were unsupervised. If this happens to a few players, it's going to present sort of a p.r. problem for both players and owners, further fueling how sick of this we all are.

It's no different than any other activity players engage in in the off-season to keep in shape. Sometimes people get injured playing basketball or beach football or whatever; it happens.

I wasn't being critical of the players. I'm pointing out the very real possibility that players will get hurt during these practices, and it may be--probably will be painted by the media as the result of being unsupervised. Do you really disagree with this?

It is likely that someone will get hurt. Commentators who side with the owners will portray it as rogue players getting themselves into trouble. Commentators who side with the players will portray it as hard-working players getting screwed by the lock-out. Commentators who are reasonable will portray it as the kind of thing that happens to athletes doing physical things.

 

[Maurile Tremblay]

Interesting. The NHL just requested permission to file a brief in support of the NFL's position.

 

[Maurile Tremblay]

Here is the NFL's opening appellate brief (filed today).

 

[Raiderfan32904]

Here is the NFL's opening appellate brief (filed today).

Ok, I'll bite. I'm not a lawyer and with no aspirations of being one. What is the cliff notes version of this, and does it tell us anything new? I see a bunch of talk of argument over jurisdiction. Is this the main point? Please explain.

 

[Maurile Tremblay]

Here is the NFL's opening appellate brief (filed today).

Ok, I'll bite. I'm not a lawyer and with no aspirations of being one. What is the cliff notes version of this, and does it tell us anything new? I see a bunch of talk of argument over jurisdiction. Is this the main point? Please explain.

I'm only on page 13. When I finish reading it, I'll give you my thoughts.In general, though, it's all the same arguments that were made in district court (as you'd expect). The owners are saying that the district court judge applied the law incorrectly, and they're asking the appellate court to correct her. In brief, they're saying that the district court lacks jurisdiction to issue a preliminary injunction enjoining the lockout (for a number of reasons), and that even if the court has jurisdiction, the lockout doesn't violate antitrust laws because the non-statutory labor exemption still applies (since the players only decertified just very recently, and the exemption is withdrawn only after sufficient time has passed).

 

[cobalt_27]

Here is the NFL's opening appellate brief (filed today).

Ok, I'll bite. I'm not a lawyer and with no aspirations of being one. What is the cliff notes version of this, and does it tell us anything new? I see a bunch of talk of argument over jurisdiction. Is this the main point? Please explain.

I'm only on page 13. When I finish reading it, I'll give you my thoughts.In general, though, it's all the same arguments that were made in district court (as you'd expect). The owners are saying that the district court judge applied the law incorrectly, and they're asking the appellate court to correct her. In brief, they're saying that the district court lacks jurisdiction to issue a preliminary injunction enjoining the lockout (for a number of reasons), and that even if the court has jurisdiction, the lockout doesn't violate antitrust laws because the non-statutory labor exemption still applies (since the players only decertified just very recently, and the exemption is withdrawn only after sufficient time has passed).

Specific question(s): On what grounds is the NFL claiming "sufficient" time has not passed? Have they operationalized the definition of what is "sufficient"?

 

[Maurile Tremblay]

Here is the NFL's opening appellate brief (filed today).

Ok, I'll bite. I'm not a lawyer and with no aspirations of being one. What is the cliff notes version of this, and does it tell us anything new? I see a bunch of talk of argument over jurisdiction. Is this the main point? Please explain.

I'm only on page 13. When I finish reading it, I'll give you my thoughts.In general, though, it's all the same arguments that were made in district court (as you'd expect). The owners are saying that the district court judge applied the law incorrectly, and they're asking the appellate court to correct her. In brief, they're saying that the district court lacks jurisdiction to issue a preliminary injunction enjoining the lockout (for a number of reasons), and that even if the court has jurisdiction, the lockout doesn't violate antitrust laws because the non-statutory labor exemption still applies (since the players only decertified just very recently, and the exemption is withdrawn only after sufficient time has passed).

Specific question(s): On what grounds is the NFL claiming "sufficient" time has not passed? Have they operationalized the definition of what is "sufficient"?

(I think you mean the players?)In Brown v. Pro Football, Inc., the D.C. Court of Appeals held that the exemption ends as soon as the players decertify. When that case was appealed to the U.S. Supreme Court, the Court held that the exemption ends when the parties are "sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process." It specifically declined to agree or disagree with the Court of Appeals that decertification was automatically sufficient. The players are arguing for the D.C. Court of Appeals's view.

 

[cobalt_27]

Here is the NFL's opening appellate brief (filed today).

Ok, I'll bite. I'm not a lawyer and with no aspirations of being one. What is the cliff notes version of this, and does it tell us anything new? I see a bunch of talk of argument over jurisdiction. Is this the main point? Please explain.

I'm only on page 13. When I finish reading it, I'll give you my thoughts.In general, though, it's all the same arguments that were made in district court (as you'd expect). The owners are saying that the district court judge applied the law incorrectly, and they're asking the appellate court to correct her. In brief, they're saying that the district court lacks jurisdiction to issue a preliminary injunction enjoining the lockout (for a number of reasons), and that even if the court has jurisdiction, the lockout doesn't violate antitrust laws because the non-statutory labor exemption still applies (since the players only decertified just very recently, and the exemption is withdrawn only after sufficient time has passed).

Specific question(s): On what grounds is the NFL claiming "sufficient" time has not passed? Have they operationalized the definition of what is "sufficient"?

(I think you mean the players?)In Brown v. Pro Football, Inc., the D.C. Court of Appeals held that the exemption ends as soon as the players decertify. When that case was appealed to the U.S. Supreme Court, the Court held that the exemption ends when the parties are "sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process." It specifically declined to agree or disagree with the Court of Appeals that decertification was automatically sufficient. The players are arguing for the D.C. Court of Appeals's view.

Thanks. I meant the NFL/owners, since they are suggesting that the exemption shouldn't be applied immediately (i.e., there hasn't been "sufficient" time passed yet to let the collective bargaining process play out).At any rate, sounds like the Supreme Court left it sufficiently vague.

 

[Maurile Tremblay]

Here is the NFL's opening appellate brief (filed today).

Ok, I'll bite. I'm not a lawyer and with no aspirations of being one. What is the cliff notes version of this, and does it tell us anything new? I see a bunch of talk of argument over jurisdiction. Is this the main point? Please explain.

I'm only on page 13. When I finish reading it, I'll give you my thoughts.In general, though, it's all the same arguments that were made in district court (as you'd expect). The owners are saying that the district court judge applied the law incorrectly, and they're asking the appellate court to correct her. In brief, they're saying that the district court lacks jurisdiction to issue a preliminary injunction enjoining the lockout (for a number of reasons), and that even if the court has jurisdiction, the lockout doesn't violate antitrust laws because the non-statutory labor exemption still applies (since the players only decertified just very recently, and the exemption is withdrawn only after sufficient time has passed).

Specific question(s): On what grounds is the NFL claiming "sufficient" time has not passed? Have they operationalized the definition of what is "sufficient"?

(I think you mean the players?)In Brown v. Pro Football, Inc., the D.C. Court of Appeals held that the exemption ends as soon as the players decertify. When that case was appealed to the U.S. Supreme Court, the Court held that the exemption ends when the parties are "sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process." It specifically declined to agree or disagree with the Court of Appeals that decertification was automatically sufficient. The players are arguing for the D.C. Court of Appeals's view.

Thanks. I meant the NFL/owners, since they are suggesting that the exemption shouldn't be applied immediately (i.e., there hasn't been "sufficient" time passed yet to let the collective bargaining process play out).At any rate, sounds like the Supreme Court left it sufficiently vague.

The owners want the antitrust exemption. The players will argue that the exemption is inapplicable, and that the owners' actions are therefore subject to antitrust laws.The owners' argument is that the decertification can't be "sufficiently distant in time and in circumstance from the collective-bargaining process" when it occurred even before the last CBA (as extended) had expired.

 

[bicycle_seat_sniffer]

Interesting. The NHL just requested permission to file a brief in support of the NFL's position.

Interesting, wonder if the other leagues will follow suit?I mean whats the point of union if everytime CBA negoations come up they simply disban

 

[cobalt_27]

Here is the NFL's opening appellate brief (filed today).

Ok, I'll bite. I'm not a lawyer and with no aspirations of being one. What is the cliff notes version of this, and does it tell us anything new? I see a bunch of talk of argument over jurisdiction. Is this the main point? Please explain.

I'm only on page 13. When I finish reading it, I'll give you my thoughts.In general, though, it's all the same arguments that were made in district court (as you'd expect). The owners are saying that the district court judge applied the law incorrectly, and they're asking the appellate court to correct her. In brief, they're saying that the district court lacks jurisdiction to issue a preliminary injunction enjoining the lockout (for a number of reasons), and that even if the court has jurisdiction, the lockout doesn't violate antitrust laws because the non-statutory labor exemption still applies (since the players only decertified just very recently, and the exemption is withdrawn only after sufficient time has passed).

Specific question(s): On what grounds is the NFL claiming "sufficient" time has not passed? Have they operationalized the definition of what is "sufficient"?

(I think you mean the players?)In Brown v. Pro Football, Inc., the D.C. Court of Appeals held that the exemption ends as soon as the players decertify. When that case was appealed to the U.S. Supreme Court, the Court held that the exemption ends when the parties are "sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process." It specifically declined to agree or disagree with the Court of Appeals that decertification was automatically sufficient. The players are arguing for the D.C. Court of Appeals's view.

Thanks. I meant the NFL/owners, since they are suggesting that the exemption shouldn't be applied immediately (i.e., there hasn't been "sufficient" time passed yet to let the collective bargaining process play out).At any rate, sounds like the Supreme Court left it sufficiently vague.

The owners want the antitrust exemption. The players will argue that the exemption is inapplicable, and that the owners' actions are therefore subject to antitrust laws.The owners' argument is that the decertification can't be "sufficiently distant in time and in circumstance from the collective-bargaining process" when it occurred even before the last CBA (as extended) had expired.

Yeah, I wasn't clear. I meant the revocation of the exemption.Lawyers talk funny. Bottom line, the owners are saying don't take away our antitrust protection just yet because we ain't had enough time of separation from the bargaining process...the players are saying, no, we decertified, you have no antitrust protection right now. Appeals court agrees with players. Supreme Court left it somewhat vague, but gives the owners hope that the same argument about "sufficient time" can be made again.

I lay language, is this close?

 

[cobalt_27]

Interesting. The NHL just requested permission to file a brief in support of the NFL's position.

Interesting, wonder if the other leagues will follow suit?I mean whats the point of union if everytime CBA negoations come up they simply disban

Well, the union and pro-labor folks would probably say, "tough...deal with it." Point is, it makes them more powerful if they can morph in and out of this identity whenever it serves their interests.

 

[daveR]

I read the Nelson decision. The problem I have is the idea that the players involved would suffer "irreparable harm" that a boatload of money couldn't fix.

What harm???? Hanging out with "the guys" in the locker room? The fun they have playing football? (Why not play more games then?) The fact that their bodies wouldn't be beat up every week?

 

[otis68]

Interesting. The NHL just requested permission to file a brief in support of the NFL's position.

Interesting, wonder if the other leagues will follow suit?I mean whats the point of union if everytime CBA negoations come up they simply disban

Ironic. Most employers would be giddy to get rid of a union. Meanwhile the NFL owners DEMAND!!! that the players MUST!!! keep their union, so that their work rules will remain legal. The union is supposed to exist for the worker, not the owner. I find it difficult to believe that a conservative court will set the precedent of not allowing a union to disband, especially with all the right wing governors pushing for laws stipulating that unions have to hold yearly votes to remain in existence.

 

[Maurile Tremblay]

Interesting. The NHL just requested permission to file a brief in support of the NFL's position.

Interesting, wonder if the other leagues will follow suit?I mean whats the point of union if everytime CBA negoations come up they simply disban

Ironic. Most employers would be giddy to get rid of a union. Meanwhile the NFL owners DEMAND!!! that the players MUST!!! keep their union, so that their work rules will remain legal. The union is supposed to exist for the worker, not the owner. I find it difficult to believe that a conservative court will set the precedent of not allowing a union to disband, especially with all the right wing governors pushing for laws stipulating that unions have to hold yearly votes to remain in existence.

Nobody's demanding that the players must keep their union. In fact, the owners have not asserted any counterclaims at all.What the owners are contending is that the NFLPA's decertification, being a sham and all, should not render the Norris-LaGuardia Act inapplicable, or deprive the owners of the nonstatutory labor exemption.

 

[David Dodds]

Pretty lame by the Appeals judges if they never rule on the stay after making both sides create positions.

 

[Maurile Tremblay]

Here is the NFL's opening appellate brief (filed today).

My thoughts as I read through this . . .Sham decertification.

1. I commented earlier in the thread that, while the players' intent (specifically, whether they intended decertification to be permanent) doesn't appear relevant to the issue of whether the decertification was a sham, even if it were relevant, the players would be able to produce uncontradicted declarations evidencing such an intent. I now take that back. The owners have collected plenty of quotes from both NFL players and NFLPA representatives suggesting that the players did not intend the decertification to be permanent. In the minds of at least some players (and union leaders), decertification was a negotiating tactic designed to lead to a more favorable CBA.

2. The owners have not, however, cited any authority supporting their argument that the players' subjective intent is relevant. (Indeed, it would be hard for the court to consider the subjective intent of more than a thousand players. What if 45% of the players intended the decertification to be permanent, 25% intended it to be temporary, and the remaining 20% didn't know what they intended?) The district court used an objective test, asking not what people intended, but what they did. That, to me, seems appropriate; and it seems to be consistent with the NLRB's previous guidance.

Jurisdiction.

3. The owners argue that the Norris-LaGuardia Act strictly limits injunctions in cases "involving or growing out of" a "labor dispute" and prohibits injunctions against lockouts altogether. The owners further argue that you don't need union involvement to have a labor dispute; but even if you do, this case at least grows out of a dispute involving a union. The owners cite a few cases supporting their contentions — cases that the district court distinguished from this one. Going through all the cited cases would require more work than I'm willing to do; but just from the standpoint of what's reasonable, I come down on the players' side here. Employees have a right to be unionized or non-unionized: it's their choice. As long as they are unionized, they can resolve their substantive differences with the owners at the collective bargaining table (with some procedural help along the way from the NLRB). But when they are non-unionized, there is no collective bargaining table, and there are substantive restrictions on the terms that employers may legally implement — restrictions that must be enforced by courts. If courts can't enforce antitrust laws for some period of time after a union decertifies, during that period employers may threaten a lockout, but players may not threaten a strike. That's an imbalance I don't find sensible. If the players can't act with all the legal protections afforded by the existence of a union — and after decertifying, they cannot — then neither should the owners be able to. There should not be a waiting period after decertification during which the players have neither the protection of a union nor the protection of the law. When the union has been disclaimed, they should have access to the courts to enforce antitrust and other applicable laws, IMO.

4. The owners argue that even if the court doesn't lack jurisdiction because this is a "labor dispute," it still lacks jurisdiction because the central issue is whether the decertification was a sham, and that's something for the NLRB to decide. This is the "primary jurisdiction" argument, and I find it completely unpersuasive. A valid disclaimer is not an element of any of the plaintiffs' causes of action. The absence of a valid disclaimer is a defense. The owners argue that the district court lacks jurisdiction to decide whether the defense is meritorious. The owners' position would leave district courts without jurisdiction in any case where the "sham decertification" defense was raised in the pleadings, whether or not that defense had any basis in fact (since the district court would lack jurisdiction to even evaluate whether it had any basis in fact). That's a bit crazy. In fact, it's so crazy that I must be misunderstanding the owners' argument. It's late. (It's also frustrating that after the district court held that the application of primary jurisdiction is discretionary, the owners neither concede as much nor offer contradictory authority. Was Judge Nelson right about that or not? It's impossible to tell from the owners' brief. On the whole, I think the owners did a really fantastic job on this brief; but I'm pretty underwhelmed by the section on primary jurisdiction.)

The Nonstatutory Labor Exemption.

5. In general, stuff that's agreed to in a CBA is exempt from antitrust scrutiny. If the players agree to a salary cap, they can't sue the owners for implementing a salary cap. Makes sense. There's some question about when the exemption ends. It doesn't end as soon as the CBA expires; that wouldn't be fair to the owners. But how long does the exemption last? The D.C. Circuit Court of Appeals said it ends upon decertification, but the U.S. Supreme Court declined to get that specific. The 8th Circuit Court of Appeals is not bound by what the D.C. Circuit says. So it's a bit unclear in this case. Without reading the cases cited by each party (again, too much work!), I think reasonableness is on the players' side in this case. Whether or not the exemption extends beyond decertification in general, I don't think that a lockout should be exempt. I said above that, in general, stuff that's agreed to in a CBA is exempt — but a lockout was never agreed to in a CBA. If the owners want to keep the draft for a while, and restrictions on free agency, I think they have some good arguments. But to engage in a lockout? I come back to the fact that, after decertification, the players may no longer strike; the owners, therefore, should not be able to lock them out. Those two powers should stay reciprocal, IMO.

Irreparable Harm and Whatnot.

6. In determining whether to grant the requested preliminary injunction, the court should consider (1) the threat of irreparable harm to the players; (2) balancing this harm with any injury an injunction would inflict on the owners; (3) the probability that the players would succeed on the merits; and (4) the effect on the public interest. I don't think the players would be irreparably harmed by a lockout. For the most part, they'd merely be reparably harmed. If the lockout is improper, they'll get treble damages. On the other hand, I don't see any great injury the owners would suffer if they can't do a lockout. Having a season is very likely better for the owners than not having a season. And anyway, what's wrong with scrambled eggs?? (Are the owners vegans or something?) I would expect the players to ultimately succeed on the merits, at least with respect to the lockout. And I think the public interest favors having a football season.

Overall, I would affirm the district court's order granting a preliminary injunction enjoining the lockout.

 

[Raiderfan32904]

Good info, MT.

On the point of jurisdiction, it seems like the owners want their cake and eat it too. Their argument is that injunctions are limited and possibly even abolished if the dispute can be argued to have be derived from a “union”. Pretty thin argument here, if that is what they are saying. They need the union to exist after the fact to support their case. Ostensibly, It looks like the owners are trying to shield themselves from anti-trust laws that protect the now de-certified players.

Once the lockout is lifted, (at least there is a good argument for lifting), there are only "reparable" damages to both sides.

 

[renesauz]

Here is the NFL's opening appellate brief (filed today).

My thoughts as I read through this . . .Sham decertification.

1. I commented earlier in the thread that, while the players' intent (specifically, whether they intended decertification to be permanent) doesn't appear relevant to the issue of whether the decertification was a sham, even if it were relevant, the players would be able to produce uncontradicted declarations evidencing such an intent. I now take that back. The owners have collected plenty of quotes from both NFL players and NFLPA representatives suggesting that the players did not intend the decertification to be permanent. In the minds of at least some players (and union leaders), decertification was a negotiating tactic designed to lead to a more favorable CBA.

2. The owners have not, however, cited any authority supporting their argument that the players' subjective intent is relevant. (Indeed, it would be hard for the court to consider the subjective intent of more than a thousand players. What if 45% of the players intended the decertification to be permanent, 25% intended it to be temporary, and the remaining 20% didn't know what they intended?) The district court used an objective test, asking not what people intended, but what they did. That, to me, seems appropriate; and it seems to be consistent with the NLRB's previous guidance.

Jurisdiction.

3. The owners argue that the Norris-LaGuardia Act strictly limits injunctions in cases "involving or growing out of" a "labor dispute" and prohibits injunctions against lockouts altogether. The owners further argue that you don't need union involvement to have a labor dispute; but even if you do, this case at least grows out of a dispute involving a union. The owners cite a few cases supporting their contentions — cases that the district court distinguished from this one. Going through all the cited cases would require more work than I'm willing to do; but just from the standpoint of what's reasonable, I come down on the players' side here. Employees have a right to be unionized or non-unionized: it's their choice. As long as they are unionized, they can resolve their substantive differences with the owners at the collective bargaining table (with some procedural help along the way from the NLRB). But when they are non-unionized, there is no collective bargaining table, and there are substantive restrictions on the terms that employers may legally implement — restrictions that must be enforced by courts. If courts can't enforce antitrust laws for some period of time after a union decertifies, during that period employers may threaten a lockout, but players may not threaten a strike. That's an imbalance I don't find sensible. If the players can't act with all the legal protections afforded by the existence of a union — and after decertifying, they cannot — then neither should the owners be able to. There should not be a waiting period after decertification during which the players have neither the protection of a union nor the protection of the law. When the union has been disclaimed, they should have access to the courts to enforce antitrust and other applicable laws, IMO.

4. The owners argue that even if the court doesn't lack jurisdiction because this is a "labor dispute," it still lacks jurisdiction because the central issue is whether the decertification was a sham, and that's something for the NLRB to decide. This is the "primary jurisdiction" argument, and I find it completely unpersuasive. A valid disclaimer is not an element of any of the plaintiffs' causes of action. The absence of a valid disclaimer is a defense. The owners argue that the district court lacks jurisdiction to decide whether the defense is meritorious. The owners' position would leave district courts without jurisdiction in any case where the "sham decertification" defense was raised in the pleadings, whether or not that defense had any basis in fact (since the district court would lack jurisdiction to even evaluate whether it had any basis in fact). That's a bit crazy. In fact, it's so crazy that I must be misunderstanding the owners' argument. It's late. (It's also frustrating that after the district court held that the application of primary jurisdiction is discretionary, the owners neither concede as much nor offer contradictory authority. Was Judge Nelson right about that or not? It's impossible to tell from the owners' brief. On the whole, I think the owners did a really fantastic job on this brief; but I'm pretty underwhelmed by the section on primary jurisdiction.)

The Nonstatutory Labor Exemption.

5. In general, stuff that's agreed to in a CBA is exempt from antitrust scrutiny. If the players agree to a salary cap, they can't sue the owners for implementing a salary cap. Makes sense. There's some question about when the exemption ends. It doesn't end as soon as the CBA expires; that wouldn't be fair to the owners. But how long does the exemption last? The D.C. Circuit Court of Appeals said it ends upon decertification, but the U.S. Supreme Court declined to get that specific. The 8th Circuit Court of Appeals is not bound by what the D.C. Circuit says. So it's a bit unclear in this case. Without reading the cases cited by each party (again, too much work!), I think reasonableness is on the players' side in this case. Whether or not the exemption extends beyond decertification in general, I don't think that a lockout should be exempt. I said above that, in general, stuff that's agreed to in a CBA is exempt — but a lockout was never agreed to in a CBA. If the owners want to keep the draft for a while, and restrictions on free agency, I think they have some good arguments. But to engage in a lockout? I come back to the fact that, after decertification, the players may no longer strike; the owners, therefore, should not be able to lock them out. Those two powers should stay reciprocal, IMO.

Irreparable Harm and Whatnot.

6. In determining whether to grant the requested preliminary injunction, the court should consider (1) the threat of irreparable harm to the players; (2) balancing this harm with any injury an injunction would inflict on the owners; (3) the probability that the players would succeed on the merits; and (4) the effect on the public interest. I don't think the players would be irreparably harmed by a lockout. For the most part, they'd merely be reparably harmed. If the lockout is improper, they'll get treble damages. On the other hand, I don't see any great injury the owners would suffer if they can't do a lockout. Having a season is very likely better for the owners than not having a season. And anyway, what's wrong with scrambled eggs?? (Are the owners vegans or something?) I would expect the players to ultimately succeed on the merits, at least with respect to the lockout. And I think the public interest favors having a football season.

Overall, I would affirm the district court's order granting a preliminary injunction enjoining the lockout.

Nice. We may be on opposite sides of the argument, but I appreciate your posts and the thought behind them! Couple of things:

You use the argument "reasonable" several times. Do you find union decertifications primarily for the purpose of negotiating power reasonable? I don't.

The whole "Nonstatutory Labor Exemption" thing intrigues me. If I'm understanding it correctly, while a court might lift the lockout, the NFL would have a strong, likely winnable case to keep most of the traditional (illegal without CBA) restrictions (salary cap, draft, etc.) for at least a little while...perhaps a season or two?

The argument that a lockout and a strike should be reciprocal is a good one, and appropriate. I agree with that in principal, but fall back to the unique nature and problem of pro sports. General principals and rules (laws) of business don't always seem to fit reasonably and appropriately. For example, in no other business would a union think about decertifying as a negotiating tactic to begin with!

It seems increasingly obvious to me that the labor/trust laws are simply inadequate to the situation.

 

[renesauz]

Good info, MT.

On the point of jurisdiction, it seems like the owners want their cake and eat it too. Their argument is that injunctions are limited and possibly even abolished if the dispute can be argued to have be derived from a “union”. Pretty thin argument here, if that is what they are saying. They need the union to exist after the fact to support their case. Ostensibly, It looks like the owners are trying to shield themselves from anti-trust laws that protect the now de-certified players.

Once the lockout is lifted, (at least there is a good argument for lifting), there are only "reparable" damages to both sides.

This is still true if the lockout isn't lifted. Owners damages are irrelevant since they're the ones forcing the lockout. I don't think there are any credible arguments that player damages would be irreparable. (Although I can see the district courts argument that they'd be virtually impossible to quantify, isn't that true of MOST injury lawsuits?????)

 

[Idiot Boxer]

Here is the NFL's opening appellate brief (filed today).

My thoughts as I read through this . . .Sham decertification.

1. I commented earlier in the thread that, while the players' intent (specifically, whether they intended decertification to be permanent) doesn't appear relevant to the issue of whether the decertification was a sham, even if it were relevant, the players would be able to produce uncontradicted declarations evidencing such an intent. I now take that back. The owners have collected plenty of quotes from both NFL players and NFLPA representatives suggesting that the players did not intend the decertification to be permanent. In the minds of at least some players (and union leaders), decertification was a negotiating tactic designed to lead to a more favorable CBA.

2. The owners have not, however, cited any authority supporting their argument that the players' subjective intent is relevant. (Indeed, it would be hard for the court to consider the subjective intent of more than a thousand players. What if 45% of the players intended the decertification to be permanent, 25% intended it to be temporary, and the remaining 20% didn't know what they intended?) The district court used an objective test, asking not what people intended, but what they did. That, to me, seems appropriate; and it seems to be consistent with the NLRB's previous guidance.

Jurisdiction.

3. The owners argue that the Norris-LaGuardia Act strictly limits injunctions in cases "involving or growing out of" a "labor dispute" and prohibits injunctions against lockouts altogether. The owners further argue that you don't need union involvement to have a labor dispute; but even if you do, this case at least grows out of a dispute involving a union. The owners cite a few cases supporting their contentions — cases that the district court distinguished from this one. Going through all the cited cases would require more work than I'm willing to do; but just from the standpoint of what's reasonable, I come down on the players' side here. Employees have a right to be unionized or non-unionized: it's their choice. As long as they are unionized, they can resolve their substantive differences with the owners at the collective bargaining table (with some procedural help along the way from the NLRB). But when they are non-unionized, there is no collective bargaining table, and there are substantive restrictions on the terms that employers may legally implement — restrictions that must be enforced by courts. If courts can't enforce antitrust laws for some period of time after a union decertifies, during that period employers may threaten a lockout, but players may not threaten a strike. That's an imbalance I don't find sensible. If the players can't act with all the legal protections afforded by the existence of a union — and after decertifying, they cannot — then neither should the owners be able to. There should not be a waiting period after decertification during which the players have neither the protection of a union nor the protection of the law. When the union has been disclaimed, they should have access to the courts to enforce antitrust and other applicable laws, IMO.

4. The owners argue that even if the court doesn't lack jurisdiction because this is a "labor dispute," it still lacks jurisdiction because the central issue is whether the decertification was a sham, and that's something for the NLRB to decide. This is the "primary jurisdiction" argument, and I find it completely unpersuasive. A valid disclaimer is not an element of any of the plaintiffs' causes of action. The absence of a valid disclaimer is a defense. The owners argue that the district court lacks jurisdiction to decide whether the defense is meritorious. The owners' position would leave district courts without jurisdiction in any case where the "sham decertification" defense was raised in the pleadings, whether or not that defense had any basis in fact (since the district court would lack jurisdiction to even evaluate whether it had any basis in fact). That's a bit crazy. In fact, it's so crazy that I must be misunderstanding the owners' argument. It's late. (It's also frustrating that after the district court held that the application of primary jurisdiction is discretionary, the owners neither concede as much nor offer contradictory authority. Was Judge Nelson right about that or not? It's impossible to tell from the owners' brief. On the whole, I think the owners did a really fantastic job on this brief; but I'm pretty underwhelmed by the section on primary jurisdiction.)

The Nonstatutory Labor Exemption.

5. In general, stuff that's agreed to in a CBA is exempt from antitrust scrutiny. If the players agree to a salary cap, they can't sue the owners for implementing a salary cap. Makes sense. There's some question about when the exemption ends. It doesn't end as soon as the CBA expires; that wouldn't be fair to the owners. But how long does the exemption last? The D.C. Circuit Court of Appeals said it ends upon decertification, but the U.S. Supreme Court declined to get that specific. The 8th Circuit Court of Appeals is not bound by what the D.C. Circuit says. So it's a bit unclear in this case. Without reading the cases cited by each party (again, too much work!), I think reasonableness is on the players' side in this case. Whether or not the exemption extends beyond decertification in general, I don't think that a lockout should be exempt. I said above that, in general, stuff that's agreed to in a CBA is exempt — but a lockout was never agreed to in a CBA. If the owners want to keep the draft for a while, and restrictions on free agency, I think they have some good arguments. But to engage in a lockout? I come back to the fact that, after decertification, the players may no longer strike; the owners, therefore, should not be able to lock them out. Those two powers should stay reciprocal, IMO.

Irreparable Harm and Whatnot.

6. In determining whether to grant the requested preliminary injunction, the court should consider (1) the threat of irreparable harm to the players; (2) balancing this harm with any injury an injunction would inflict on the owners; (3) the probability that the players would succeed on the merits; and (4) the effect on the public interest. I don't think the players would be irreparably harmed by a lockout. For the most part, they'd merely be reparably harmed. If the lockout is improper, they'll get treble damages. On the other hand, I don't see any great injury the owners would suffer if they can't do a lockout. Having a season is very likely better for the owners than not having a season. And anyway, what's wrong with scrambled eggs?? (Are the owners vegans or something?) I would expect the players to ultimately succeed on the merits, at least with respect to the lockout. And I think the public interest favors having a football season.

Overall, I would affirm the district court's order granting a preliminary injunction enjoining the lockout.

Thanks, MT for distilling this. I think you make good points. My main issue is with reading your interpretation of items 2 and 3 together in favor of the players. It is, in my opinion, the exact opposite side of the coin where owners could threaten lockout but players can't strike. If a decertification can be had merely by filing the proper paperwork and no intent is required and such decertification is valid at the very moment of filing and ownership must immediately begin complying with anti-trust law, it gives the players the ability to choose whatever law best suits them at any particular time. I think this result is just as unfair as one which allows owners to lockout a workforce that isn't able to strike. I am not sure where the 'balance' or 'happy medium' is, but I don't think either side should possess such an advantage.

 

[Raiderfan32904]

It is, in my opinion, the exact opposite side of the coin where owners could threaten lockout but players can't strike. If a decertification can be had merely by filing the proper paperwork and no intent is required and such decertification is valid at the very moment of filing and ownership must immediately begin complying with anti-trust law, it gives the players the ability to choose whatever law best suits them at any particular time. I think this result is just as unfair as one which allows owners to lockout a workforce that isn't able to strike. I am not sure where the 'balance' or 'happy medium' is, but I don't think either side should possess such an advantage.

However, if it can be proven that the decertification was a sham, and it appears there is enough evidence (intent) that a judge could rule that way.... Then, the argument flips against the owners, no?

 

[Idiot Boxer]

It is, in my opinion, the exact opposite side of the coin where owners could threaten lockout but players can't strike. If a decertification can be had merely by filing the proper paperwork and no intent is required and such decertification is valid at the very moment of filing and ownership must immediately begin complying with anti-trust law, it gives the players the ability to choose whatever law best suits them at any particular time. I think this result is just as unfair as one which allows owners to lockout a workforce that isn't able to strike. I am not sure where the 'balance' or 'happy medium' is, but I don't think either side should possess such an advantage.

However, if it can be proven that the decertification was a sham, and it appears there is enough evidence (intent) that a judge could rule that way.... Then, the argument flips against the owners, no?

Yes. I think at that point, MT had interjected his own personal opinion on how he'd rule as a judge. He feels that - for policy reasons because determining the collective subjective intent of a large group such as the NFLPA - only the objective indices of decertification need be fulfilled and that there is no subjective component. My question is this: What then, does make a sham decertification? Failing to file the proper papers? I'd argue that that isn't a sham decertification, that it was a faulty or ineffectual decertification. The mere existence of the "sham certification" standard implies an element of intent.

 

[jbobbett]

Thanks, MT for distilling this. I think you make good points. My main issue is with reading your interpretation of items 2 and 3 together in favor of the players. It is, in my opinion, the exact opposite side of the coin where owners could threaten lockout but players can't strike. If a decertification can be had merely by filing the proper paperwork and no intent is required and such decertification is valid at the very moment of filing and ownership must immediately begin complying with anti-trust law, it gives the players the ability to choose whatever law best suits them at any particular time. I think this result is just as unfair as one which allows owners to lockout a workforce that isn't able to strike. I am not sure where the 'balance' or 'happy medium' is, but I don't think either side should possess such an advantage.

As usual, I agree with IB. It seems to be the strike/lockout mechanism that is built into the labor laws is a pretty good setup for getting a fair resolution. Consider two extreme cases:Case 1. A CBA is in place that 100% favors the owners, to the extent that the players could make just as good a living at a "real job". So the players strike. In this case the players could hold out indefinitely because they can just go get real jobs. Meanwhile the owners are losing money like crazy. The owners have to cave and give the players a better deal.Case 2. A CBA is in place that 100% favors the players, to the extent that the owners are break-even or losing money. Lockout ensues, owners can hold out indefinitely because they weren't making any money anyway. Meanwhile players are losing money like crazy. Players would have to cave and give the owners a better deal.Those are two simple cases at the edges of the spectrum, but you can imagine the in-between cases. The strike/lockout mechanism is going to put more pain on the side that has the better deal, forcing them to compromise at a fair deal where equal pain is felt.Seems like a good system to me. It's breaking down now I think because pro sports is unique in that the owners need collective bargaining as much as labor does, whereas that's not the case in the other industries. That gives the union extra power beyond what I argue is a fair balance provided by the strike/lockout mechanism.To me that's not fair and not in the best interest of the country in having entertaining sports leagues. Now the baseball antitrust exemption makes sense to me. It recognizes the fact that sports leagues are "different". I feel it should be applied to all sports leagues. The collective bargaining labor laws (whatever the proper term for that is) provide enough protection to the players.