Posted: Sunday July 24, 2011 7:44PM ; Updated: Sunday July 24, 2011 7:51PM
Michael McCann
Michael McCann>SPORTS LAW

Path to NFL normalcy begins with players' board approving deal

Story Highlights

If the owners' CBA proposal is ratified, teams could open up camps on Wednesday

The current players' suit won't be an obstacle, but one filed by retirees could be

Expect the NLPA to reclaim its representation of players, allowing football to return

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NFLPA president Kevin Mawae and the rest of the executive board will meet Monday in Washington, D.C.
NFLPA president Kevin Mawae and the rest of the executive board will meet Monday in Washington, D.C.
Susan Walsh/AP

A few days ago, NFL owners approved a proposed 10-year collective bargaining agreement. The ball is now in the players' hands to approve or reject the proposal. Will NFL football soon return? Michael McCann breaks down what to expect this week.

1. What needs to happen for the NFL to be back up and running?

The first step is that a majority of the NFLPA's executive committee, which consists of 10 active players and two retired players, must vote to recommend ratification of the owners' CBA proposal. The executive committee will meet tomorrow in Washington, D.C., and is expected to recommend ratification.

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Provided the executive committee votes to recommend ratification, the second step would be a majority of the 32 player representatives (one from each team) voting to recommend ratification. This vote is also expected to occur on Monday and is likewise expected to be favorable, if not unanimous. If favorable, teams are expected to open up training camps on Wednesday and engage in most football-related activities, save for the signing of player contracts, which necessitates a fully empowered NFLPA. A favorable vote would also mean that the 1,900 players become the decision-makers as to whether there will be a 2011 season.

Along those lines, the third step would be a majority of the 1,900 players voting to empower the NFLPA to represent the players once again and to ratify the CBA proposal. In March, the NFLPA disclaimed interest in representing the players; this disclaimer can effectively be reversed by a simple vote. The players' voting process would take several days, possibly into the weekend or early next week. It is expected the players will vote to recertify the NFLPA and ratify the CBA proposal, which would mean a return to normal NFL football within about a week.

2. Couldn't the Tom Brady et al. v. NFL antitrust lawsuit prevent ratification of a CBA?

Yes, but the 10 plaintiffs who brought the lawsuit and the NFL are thought to be close to a settlement. Judge Susan Nelson is expected to approve the settlement, which would remove the lawsuit from the courts and it would no longer pose an obstacle to ratification of a new CBA.

3. How about the Carl Eller-led lawsuit on behalf of retired players?

The Eller lawsuit may prove more problematic for the NFL and its players. As explained in a recent column, the Eller lawsuit asserts that current players, who when collectively bargaining with owners are entrusted with representing the interests of retired players, have breached a fiduciary duty. Namely, according to Eller, current players have too willingly relinquished or traded away potential benefits for retired players so that current players can earn more.

In theory, Eller could seek injunctive relief from Judge Nelson that would prevent the players and owners from ratifying a new CBA until either Eller is satisfied with the CBA's terms or a court has heard Eller's claim (which could take months or longer). There is no indication that Eller will seek injunctive relief. In fact, Eller recently stated he does not want to stand in the way of an agreement between the NFL and players.

But Eller is just one of a class of thousands of retired NFL players and another member of it could seek injunctive relief. If injunctive relief was sought and if Judge Nelson granted it, a three-judge panel on the U.S. Court of Appeals for the Eighth Circuit -- which recently reversed Nelson's granting of an injunction of the lockout -- would again review Nelson's order. At a minimum, the ratification of a new CBA could be delayed several weeks.

Given that the proposed CBA reportedly includes an additional $1 billion in funding for retired players, it seems the owners and current players have tried to assuage concerns identified in the Eller lawsuit. Still, it would behoove the owners and players to ratify a new deal soon, as doing so would prevent a retired player or group of retired players from complicating the situation.

4. There is still Judge David Doty's favorable ruling for the players in the TV revenue dispute. How could that impact ratification?

The NFL and players will likely settle this case as a condition of a new CBA. The NFL was set to appeal Judge Doty's decision, but instead the parties will likely petition Doty to accept a settlement and dismiss the case.

5. What happens if there is much more resistance among the players to the owners' proposal than expected? Could the players respond with their own counterproposal instead of voting in favor of the owners' proposal?

Yes, though depending on the amount of changes in a counterproposal, a counterproposal would delay or potentially prevent getting a deal done within the next week or two. When presented with a counterproposal, the owners would have to reconvene and vote on it. Given that owners believe they have already made serious concessions, and given that they have won (at least for now) in the courts, they may be unwilling to budge from their approved proposal. The players might also be concerned that if they do not accept the owners' proposed CBA, the public may blame them for the prolonging of the labor dispute.

6. Assuming a deal is reached between the owners and players, what will happen to the owners' unfair labor practices charge filed against the players?

The charge, which the NFL filed with the National Labor Relations Board in February, is expected to be dropped at the league's request and as part of the deal with the players. If the charge is not dropped, the players, who are poised to immediately recertify in order to get a new CBA ratified, would become very concerned that their decertification (disclaimer of interest) might be viewed by the NLRB as "sham" in order to have facilitated the Brady antitrust lawsuit.

7. Do the players have to recertify in order for there to be a collective bargaining agreement?

Yes. A collective bargaining agreement requires bargaining between an employer (or employers) and a union/players' association. An agreement between one employee and an employer would not constitute collective bargaining.

8. Could the NFL operate without a collective bargaining agreement?

Yes, but do not expect that to happen. Instead of collectively bargaining the salary cap, free agency rules, the draft and other rules that impact players' employment, the NFL could unilaterally impose the terms of its proposed CBA. That, however, would subject those terms to antitrust litigation, as the federal labor exemption only immunizes rules from antitrust law if they have been collectively bargained.

Without antitrust immunity for NFL rules, individual NFL players could file antitrust litigation, conceivably at any time, challenging rules like the salary cap and the draft. While the league could include language in individual player contracts going forward that would waive away any potential antitrust claims, most players are already under contracts that don't include the necessary language.

Alternatively -- and again without antitrust immunity -- the NFL could allow individual teams more autonomy in creating rules so as to minimize the potential for antitrust scrutiny, which in this context refers to review of agreements among competing teams that restrict competition. Put another way, if competing teams create their own rules, such as for player discipline or drug testing, instead of using an NFL rule, those teams, and the league itself, would be more able to evade antitrust scrutiny. The NFL, however, would categorically reject such a strategy because it would run directly against the concept of the NFL as a unified league of teams.

Realistically, therefore, NFL owners would not agree to a system that would continuously run the risk of courtroom battles and that would interfere with its ability to act as a group of 32 teams that are, for most business operations, intertwined. The NFLPA will thus have to reclaim its interest in representing NFL players in order for NFL football to resume. Expect that reclamation to happen this week.

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. Follow him on Twitter.

 
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