Wednesday, February 9, 2011

The Legal Issues Behind the NFL CBA Negotiations

I have a new column up at the Huffington Post that analyzes the key legal issues behind the NFL-NFLPA collective bargaining negotiations. Here's an excerpt. You can find the complete column here.

Have professional athletes decertified their union in the past?

Yes. On November 6, 1989, the Executive Committee of the NFLPA notified the NFL Management Council that it was abandoning all collective bargaining rights. On December 5, 1989, player representatives from the then-24 NFL teams met and unanimously voted to decertify, thus ending the NFLPA's status as the players' collective bargaining representative. The NFLPA then re-formed as a voluntary professional association. The "new" NFLPA enacted new by-laws which prohibited the NFLPA or its members from engaging in collective bargaining with the NFL.

Was the 1989 decertification successful for the NFLPA?

Very. Following decertification, a small group of players filed an antitrust suit challenging the restrictive "Plan B Free Agency" rules that the owners unilaterally implemented (as their last, best offer) after the expiration of the CBA (McNeil v. NFL). A jury found that Plan B was an unreasonable restraint of trade and awarded damages to four of the players, ranging from $50,000 to $240,000. Players then filed a class action suit (White v. NFL) challenging Plan B and all free agency restrictions (including the draft). At that point, the players had tremendous leverage, and the parties agreed to settle the litigation. The settlement -- which included the creation of real free agency for the players -- was then embodied in the new CBA.

How long did it take for the NFLPA to achieve their victory when they decertified in 1989?

The players decertified in December of 1989 and the jury reached its verdict in the McNeil case in September of 1992. A new CBA was signed in February of 1993.

Decertification has been referred to as the "nuclear option," the "silver bullet," the "doomsday weapon," and a "tender contemplation on duty and the crippling weight of expectancy" (that last one may have been about The King's Speech). Is decertification really that powerful?

Yes and no. Yes, because it subjects the owners to antitrust attack and treble damages. Even the mere threat of decertification can help shift collective bargaining leverage in favor of the union.

No, for two reasons: First, depending on the timing of the decertification, the NFL will try to challenge the decertification as a "sham." In essence, this argument is that the decertification is not "real" -- it is being done merely to improve the players' bargaining position, and in reality the NFLPA is still acting as a union behind the scenes (and, they will point to the decertification and re-certification in 1989 as further proof that it is being used as a bargaining tactic rather than for any genuine reason). The NFL will argue that the union is still representing the players and still bargaining on behalf of the players, and therefore the labor exemption should continue to apply.

Second, the NFL will argue that the NFLPA's sham decertification violates its duty to bargain with the NFL in good faith.

(The NFL made both of these arguments in 1989, and was unsuccessful on both counts.)

And, even if decertification is successful, it is only the first step in a lengthy process. Decertification merely opens the door for the players to bring an antitrust suit against the NFL and its teams. The players will then have to fund a potentially long and expensive antitrust suit -- an antitrust suit they could lose.