Monday, April 4, 2011

New Sports Illustrated Column on Tom Brady v. NFL: What to Expect

I have new, a nearly 4,000 word, 12-point column on on what to expect in Wednesday's preliminary injunction hearing in Tom Brady v. NFL and how the case will impact NFL football.

Here is point 9:

9. What about Eller v. NFL, the other antitrust lawsuit that was just filed?

Late last month, a class of retired and prospective NFL players filed a lawsuit, Carl Eller et al. v. NFL, with similar antitrust claims as found in Brady v. NFL. The lawsuit was filed in the same court as Brady v. NFL: the U.S. District Court for the District of Minnesota.

Eller v. NFL is different from, and potentially more threatening, than Brady v. NFL because neither retired players nor prospective players -- the plaintiffs in Eller v. NFL -- are bargaining members of the NFLPA. With the NFLPA decertified, moreover, it cannot represent the interests of the Eller plaintiffs. Put more basically, the NFLPA may be removed from the picture in Eller v. NFL, a point which would take away a key defense the NFL enjoys in Brady v. NFL.

In Brady v. NFL, the NFL contends that the plaintiffs, while members of the NFLPA, engaged in bad faith during the collective bargaining discussions to bring an antitrust lawsuit. But in Eller v. NFL, the NFL cannot argue that the plaintiffs engaged in bad faith to bring an antitrust lawsuit, since neither prospective nor retired players were among those who collectively bargained with the NFL.

Retired players, moreover, are arguably harmed by the lockout because NFL-sponsored programs that address the needs of retired players are partly financed by fines of NFL players. During a lockout, no NFL player will be fined, thus removing a funding source for these programs.

For their part, prospective players claim to be harmed by the NFL lockout because they are "boycotted" by competing NFL teams from using their football talents for compensation. They also emphasize that there is no substitute league for the NFL that would significantly mitigate their harm.

The NFL, however, will likely highlight decisions by courts which express that players' associations bargain not only on behalf of current players, but also on behalf of those not yet in the league and those who were already in the league. As a result, the NFL will maintain that neither college players nor retired NFL players have standing to bring a lawsuit: although the Eller plaintiffs are not formal members of the NFLPA, their interests are represented by those formal members.

In response, expect the Eller plaintiffs to insist that because the NFLPA is decertified, it cannot represent any players, be they prospective, current or past.

Eller v. NFL could become extremely important should Judge Nelson deny the Brady plaintiffs' motion for a preliminary injunction on Wednesday. The Eller lawsuit also asks for a preliminary injunction against the lockout, and depending on Judge Nelson's reasoning should she reject one in Brady v. NFL, it is possible that Eller v. NFL could open the door for a second bite at the lockout apple.

To read the other 11 points, click here.