Posted: Friday March 11, 2011 5:11PM ; Updated: Sunday March 13, 2011 11:49AM
Michael McCann
Michael McCann>SPORTS LAW

NFL and players will now take labor dispute to courts

Story Highlights

Labor dispute could take weeks to unravel in federal court

One ugly scenario for fans could be a delay of 2011 NFL season

Case could end up in Supreme Court, though the odds are long

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Patriots quarterback Tom Brady has said he'll lend his name to the temporary restraining order the NFLPA plans to file.
Getty Images

Now that the NFL Players Association has decided to decertify, here's a road map of what might happen next.

1. The NFL will immediately file a grievance with the National Labor Relations Board (NLRB) in an attempt to block the decertification. The league filed a preliminary complaint with the NLRB last month to the same effect. In its argument to the NLRB, the NFL will contend that the NFLPA is acting in bad faith and that the NFLPA's true goal is to get the NFL exposed to antitrust litigation as a way of grabbing owners' money.

2. The NLRB takes no immediate action on the NFL's grievance over the weekend as its offices will be closed. The NFLPA proceeds as if it has decertified. Monday comes along and the NLRB schedules a hearing, possibly for later in the week, to review the NFLPA's decertification.

3. In addition to the NFL's NLRB grievance, the NFLPA will file a request for a temporary restraining order with U.S. District Judge David Doty in an attempt to block the NFL from executing a lockout. The NFLPA, with Tom Brady and Peyton Manning as named plaintiffs, will argue that the lockout would violate players' employment contracts with NFL teams and would constitute a group boycott under federal antitrust law, which it can now turn to since the NFLPA has decertified. Federal antitrust law is very threatening, as damages in a successful antitrust lawsuit are automatically multiplied by three.

4. I believe Judge Doty would grant the NFLPA's temporary injunction on the condition that the NFLPA temporarily withdraw its decertification papers, thus temporarily removing the NLRB from the situation, and that he hears substantive arguments from both parties in the following week or two concerning the legality of the NFL's proposed lockout.

5. The NFL then files papers for emergency appeal of Judge Doty's decision to the U.S. Court of Appeals for the 8th Circuit, which can review Judge Doty. The NFL states that it does not trust Doty's objectivity and will offer legal arguments that the NFLPA has no law to support blocking a lockout.

6. The NFL's emergency appeal attempt will be unlikely to work; appellate courts normally don't take them absent compelling circumstances. However, the U.S. Court of Appeals for the 2nd Circuit took the Clarett v. NFL case on emergency appeal after Clarett won before U.S. District Judge Shira Scheindlin and was temporarily eligible for the 2004 NFL Draft.

7. Assuming 8th Circuit does not reverse Judge Doty, he then informs the NFL and NFLPA to prepare arguments before his court. His doing so gives the NFL and NFLPA more time to bargain before Doty's hearing. During this time, the expired CBA would still have legal effect and NFL business would proceed as normal -- free agency signings still happen, consistent with current CBA rules, teams continue to prepare for 2011 NFL Draft etc. A week or two after the hearing, Doty makes his decision on whether an NFL lockout would be legal. Possible twist: NFL and NFLPA reach a deal in the interim (unlikely).

8. Assuming there is no deal between NFL and NFLPA and assuming Judge Doty rules in favor of NFL -- meaning the lockout would be given the green light -- league operations would then stop and the players would then continue their decertification. The NLRB would then conduct a hearing on the decertification. NFLPA would likely win that NLRB hearing since bad faith will be hard for NFL to show.

Assuming NFLPA wins the NLRB hearing, the nuclear outcome would emerge: no union, no bargaining (since decertification removes the NFLPA's power to collectively bargain) and no football. Such a stalemate could go on potentially for years, but that would not necessarily mean no football the whole time. If the owners wanted to restore football, they could end their lockout while the NFLPA was decertified and NFL players and teams would operate as if the expired CBA was still in effect. The NFLPA could then be recertified when NFL players were ready to strike a new CBA with the owners. This is what happened in the late '80s/early '90s, with games played in spite of an expired CBA and a decertified NFLPA.

In such instances, when NFL players have no collective bargaining entity, a judge or mediator would likely facilitate negotiations between players and owners, and once a deal between them is reached, the NFLPA would recertify and sign off on the new CBA. This happened in the early 1990s in antitrust lawsuits brought by Freeman McNeil, Reggie White and other NFL players against the NFL over various player issues -- these players brought their lawsuits while the NFLPA was decertified. The judges in their cases settled the specific legal issues at question and, in doing so, helped to broker an agreement between the NFL and NFLPA.

The risk for the players this time is if the NFLPA decertifies (and assuming NFL fails to block that) and if the owners commence a lockout (and assuming NFLPA fails to block that), then the players had better be prepared for the owners not restoring football and just waiting out the players to see if they capitulate and walk back to the bargaining table almost like beggars, offering to recertify and take whatever offer the NFL gives them.

9. Assuming there is no deal between NFL and NFLPA and assuming Judge Doty rules in favor of NFLPA -- meaning the lockout would be given the red light -- players would obtain tremendous leverage in negotiations. They could decertify and bring antitrust lawsuits and the league wouldn't be able to block those lawsuits. The players, however, would likely not decertify in this situation (or, if already decertified, they would recertify), since they are reasonably comfortable with the terms of the current CBA and it would remain in effect until a new CBA is reached. In this scenario, NFL teams would operate as normal and the 2011 season would be restored -- at least until the U.S. Court of Appeals for the 8th Circuit reviews Doty's decision.

10. Whether the NFL or NFLPA win before Judge Doty regarding the legality of the NFL's lockout, his decision would be subject to review by the U.S. Court of Appeals for the 8th Circuit and potentially (though unlikely) the United States Supreme Court. If the 8th Circuit reverses in favor of the NFL, the players would then return to the decertification route and there would be no football and no negotiations. If the 8th Circuit reverses in favor of the NFLPA, the owners cannot execute a lockout and the players obtain leverage in negotiating a new CBA and probably don't decertify.

The loser in this could petition the U.S. Supreme Court for writ of certiorari. The Supreme Court rejects approximately 98 or 99% of writs, with accepted ones usually involving splits in authority among federal circuits (not applicable here) or other novel questions of law (possibly applicable here).

11. It's also possible that after all this, the NFL's proposed lockout could be deemed illegal and the NFLPA's proposed decertification could also be deemed illegal, meaning the parties would then have to negotiate.

It's not unfathomable to think that President Obama would eventually get involved, not by forcing any action by the NFL or NFLPA, but by using the power of the Presidency to pressure both parties to stop being so selfish. He could end up playing a huge role here, and with the 2012 re-election campaign gearing up, the timing may be ripe for that.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law reading group at Yale Law School.

 
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