FOX: Lawyers Slow Progress in NFL Labor Fight

[Outlaw Heroes]

http://msn.foxsports.com/nfl/story/NFL-Eighth-Circuit-Court-hearing-owners-players-lawyers-analysis-060311

And when the 70-minute hearing was completed, Clement issued a media comment that could have a chilling effect on future negotiations between the NFL and player representatives. Clement claimed the recent private negotiations were further proof that the NFL Players Association continues to act like a union despite officially decertifying — an argument that is at the crux of the league’s legal defense in the Brady v. NFL antitrust case.

“What is going on are continuing negotiations,” Clement said. “What that underscores is that the union has not disappeared forever. Obviously, everybody can make their own judgment. But I think the problem with the argument on the other side is that it assumes that the union is gone forever. I don’t think many people who are students of this game or industry really believe that’s the fact.”

Somebody needs to get Clement under control.

[stasheroo]

http://msn.foxsports.com/nfl/story/NFL-Eighth-Circuit-Court-hearing-owners-players-lawyers-analysis-060311



Somebody needs to get Clement under control.


The lawyers - and all their bluster - need to be taken out of the equation.

Hopefully, the recent progress that was made without them will convince both the owners and players.

(no offense!)

[Outlaw Heroes]

(no offense!)

None taken. I posted a thread some time ago suggesting that the lawyers need to get out of the way.

[stasheroo]

None taken. I posted a thread some time ago suggesting that the lawyers need to get out of the way.

Then I'm with you!

:D

[Plumfool]

http://msn.foxsports.com/nfl/story/NFL-Eighth-Circuit-Court-hearing-owners-players-lawyers-analysis-060311



Somebody needs to get Clement under control.

Wasn't everyone else just saying "no comment"? Wow!!

[Outlaw Heroes]

Wow!!

Indeed. I'm inclined to think Clement made two tremendous blunders today: one inside the courtroom and one outside the courtroom. Wonder if he wishes he had a rewind button that could take him back to 9:00 a.m. this morning.

[speedkilz88]

Clements comments after the hearing:

NFL outside legal counsel Paul Clement today stressed the importance of allowing both sides in a labor dispute to use the tools of labor law to reach labor peace.

“The way you get labor peace is you allow both sides to use the tools that the labor law gives them,” Clement said after this morning’s hearing at the United States Court of Appeals for the Eighth Circuit in St. Louis. “That means the employees get a right to strike in certain situations; employers get to lock people out. There are other tools available to both sides.

“The idea is using those labor law tools will accomplish labor peace,” Clement continued. “That is not our view; that is the view that Congress took in a couple of statutes; that is the view that the Supreme Court has taken in dozens of its opinions.”

Following are post-hearing comments from Clement:

NFL OUTSIDE LEGAL COUNSEL PAUL CLEMENT

POST-COURT HEARING MEDIA BRIEFING

June 3, 2011



On what was accomplished today:

I think what we hope the rest of the world will take home from it is the idea that the fastest way to get football back on the field is to get extraneous antitrust law considerations out of this and get back to the bargaining table. I think that’s the real takeaway here. Beyond that, we obviously accomplished answering the judges’ questions and giving them our best thoughts about why it is that not only is it the common sense way to get football back on the field, but that’s also the answer that the laws provide. The laws provide that the way you get labor peace when you have a dispute about the terms and conditions of employment is that you don’t have the antitrust laws involved; you have negotiations between the interested parties and you get to a settlement. It’s not an antitrust settlement, it’s a labor settlement. And then you get back on the field.

On if there is anything to take from the dissenting judge (Judge Bye) not asking many questions:

I certainly wouldn’t read too much into it. Judges have different styles on the bench; some of them ask a lot of questions, some of them hold back. As you saw, Judge Bye asked a lot of good questions at the end, and I think when you’re the presiding judge you can wait until the end. And the other judges had great questions. So I thought all of the judges had great questions for both sides.

On why he would term the antitrust laws extraneous:

Mr. Olson talked a lot about cartelization and cartels. But the problem with that is every multi-employer bargaining association could be labeled a cartel if you wanted to. But not only are multi-employer bargaining associations not forbidden by the antitrust laws, they’re affirmatively encouraged by the labor laws. So the antitrust laws, they’re just a sore thumb here. They don’t work and they’re an extraneous consideration.

On the stay ruling:

It’s relatively unusual to have opinions of that length, and they certainly I think were helpful to both sides to getting a sense of where the court’s concerns were. But I don’t think either side took anything for granted based on the stay ruling.



On the ‘year of the business cycle’ mentioned in the court hearing:

It is very important. The argument in the court was about the length at which you can have the non-statutory labor exemption apply. The answer to that is, in our view, that it should apply for at least a year but that does not mean that you would have a lockout that would last a year or anything like that. It simply means that there would be no substantive antitrust liability for a year.

As we tried to make clear in there, we think that the lockout is actually the best way to get players back on the field. You can say, ‘Why do you think that?’ and I would say, ‘We think that because that is what all of the labor laws say.’ The way you get labor peace is you allow both sides to use the tools that the labor law gives them. That means the employees get a right to strike in certain situations; employers get to lock people out. There are other tools available to both sides. The idea is using those labor law tools will accomplish labor peace. That is not our view; that is the view that Congress took in a couple of statutes; that is the view that the Supreme Court has taken in dozens of its opinions.

On how long the Eighth Circuit Court of Appeals will take to rule on the preliminary injunction:

Judge (Kermit) Bye used the phrase ‘due course.’ That means that we will get an opinion as soon as the judges are ready to issue one.

On the recent agreement emanating from an antitrust charge:

You could say it emanated antitrust charge. You could also say that all of those agreements have been embodied in a collective bargaining agreement, and that’s because it’s almost the way that a sports industry has to be regulated.
http://nfllabor.com/2011/06/03/nfl-counsel-paul-clement-%E2%80%9Cthe-way-to-get-labor-peace-is-to-allow-both-sides-to-use-tools-of-labor-law%E2%80%9D/#more-5485

[theogt]

Way to tank what many are calling progress. What a dumb statement.

[Plumfool]

Indeed. I'm inclined to think Clement made two tremendous blunders today: one inside the courtroom and one outside the courtroom. Wonder if he wishes he had a rewind button that could take him back to 9:00 a.m. this morning.

I don't know if you view this as a mistake but I did. Clements hammered that the players reformed in 93. Opening the door for Olson to counter that it was at the Nfls request. Basically opening up the fact that the players dont benefit much from being union.

[Outlaw Heroes]

I don't know if you view this as a mistake but I did. Clements hammered that the players reformed in 93. Opening the door for Olson to counter that it was at the Nfls request. Basically opening up the fact that the players dont benefit much from being union.

I agree that it was a mistake for him to advance that argument.

The justice I clerked for once told me something I'll never forget: "too many lawyers come in here trying to argue their whole brief, rather than focussing on the one or two points that are winners."

In terms of the "decertification" argument, Clement would have been better served by focussing on the following:

(a) Brown suggested that "decertification" might signal the end of the collective bargaining process and thereby invoke the restrictions imposed by antitrust law;

(b) the NFLPA did not "decertify" (which involves a lengthy process, including a secret vote overseen by the NLRB) but merely "disclaimed" the union;

(c) therefore, the dicta in Brown is not applicable to this case and the nonstatutory exemption continues to apply.

If he wished, Clement could also have pointed to public statements of D. Smith and others indicating that the disclaimer was a tactic aimed at securing negotiating leverage and that the NFLPA has intended to reclaim union status all along.

Raising what happened in 1993 was a losing argument, in my view, and one he should have stayed away from.

[theogt]

There was a decertification and a disclaimer. The players voted to decertify some time ago. The only thing left in that respect is for the NLRB to approve the decertification, but I'm not sure how that process should affect the application of antitrust laws, but a disclaimer also operates to effect the same outcome.

[AdamJT13]

I don't know if you view this as a mistake but I did. Clements hammered that the players reformed in 93. Opening the door for Olson to counter that it was at the Nfls request.

Judge Doty has rejected the players' claim that the NFL requested or forced the union to recertify in 1993.

[Outlaw Heroes]

There was a decertification and a disclaimer. The players voted to decertify some time ago. The only thing left in that respect is for the NLRB to approve the decertification, but I'm not sure how that process should affect the application of antitrust laws, but a disclaimer also operates to effect the same outcome.

They did not decertify in accordance with the provisions of the NLRA, which, among other things, would require a secret ballot overseen by the NLRB.

As for the disclaimer, Brown is silent on whether a disclaimer would be sufficient to terminate the collective bargaining process so as to invoke the provisions of antitrust law. Even if one takes seriously the dicta in Brown that decertification may end the collective bargaining process, it would not follow that disclaimer would as well since, unlike decertification, it can occur virtually on a whim. Allowing a mere disclaimer to end the collective bargaining process would therefore invite manipulation and subversion of the collective bargaining process which, pursuant to a long history of acts of Congress and court decisions, has been intended to be shielded from the the threat of antitrust litigation.

[theogt]

Judge Doty has rejected the players' claim that the NFL requested or forced the union to recertify in 1993.Where? That seems an odd statement without more context.

[theogt]

They did not decertify in accordance with the provisions of the NLRA, which, among other things, would require a secret ballot overseen by the NLRB.That's currently being determined by the NLRB. Each team held an election. What actually occurred during those elections (e.g., presence of NLRB, voting procedures, etc.) have not been publicized. Those voting sessions, however, have been characterized as decertification votes based on public reports. I'm not sure why anyone would go through the extreme hassle of holdings meetings with every team and not carefully abide by the NLRB rules.

As for the disclaimer, Brown is silent on whether a disclaimer would be sufficient to terminate the collective bargaining process so as to invoke the provisions of antitrust law. Even if one takes seriously the dicta in Brown that decertification may end the collective bargaining process, it would not follow that disclaimer would as well since, unlike decertification, it can occur virtually on a whim. Allowing a mere disclaimer to end the collective bargaining process would therefore invite manipulation and subversion of the collective bargaining process which, pursuant to a long history of acts of Congress and court decisions, has been intended to be shielded from the the threat of antitrust litigation.Why would you classify a disclaimer differently than a decertification? There are procedures for decertification because there is public policy behind protecting employee votes from being tampered with by management. No such policy exists in the case of union management disclaiming the union, thus no additional procedures are required. If anything, that shows that a disclaimer, when made, is more grounded in a true resolve of the union to disband the collective bargaining process than a decertification.

Regardless, the analysis is not whether a disclaimer or a decertification has occurred. The analysis is whether a collective bargaining process has collapsed. That analysis looks at the substance, not the procedure. I don't put much faith in a position that lacks substance and relies solely on a procedural hurdle. The union members voted (unanimously if I recall correctly). And the union management disclaimed. Hiding behind procedural box checking seems pretty hollow in this analysis.

[Outlaw Heroes]

Theo, those are the very sorts of arguments I would make if I were representing the players. And they're not without merit. Of course, if I were representing the owners I would counter that the procedural safeguards in respect of the decertification process put in place by the NLRA are there not only to protect union members but also to protect the sanctity of the collective bargaining process itself. From that perspective, they cannot be dispensed with without doing damage to the delicate balance that Congress and the courts have historically attempted to strike between labor law and antitrust law.

[FuzzyLumpkins]

The players by popular vote stated that they do not want to be represented by the NFLPA anymore in the context of these negotiations. It really should be as simple as that.

If by doing so that puts them in a better situation by which they will want to recertify it then that is that.

Is there some statue somewhere that states that there is a timeframe to certify or recertify? Or is that just a legal argument without basis in anything substantive.

[theogt]

Theo, those are the very sorts of arguments I would make if I were representing the players. And they're not without merit. Of course, if I were representing the owners I would counter that the procedural safeguards in respect of the decertification process put in place by the NLRA are there not only to protect union members but also to protect the sanctity of the collective bargaining process itself. From that perspective, they cannot be dispensed with without doing damage to the delicate balance that Congress and the courts have historically attempted to strike between labor law and antitrust law.If Congress and the courts had actually ever required a decertification to occur, I might agree with you. However, courts have specifically held that a decertification is not necessary to discard the labor exemption. Thus, any balance between labor law and antitrust remain in tact.

[theogt]

Is there some statue somewhere that states that there is a timeframe to certify or recertify? Or is that just a legal argument without basis in anything substantive.If the players wanted to take the necessary steps to decertify (assuming they haven't already), they could pretty quickly do so. It's just a matter of checking a box.

[Reality]

The lawyers - and all their bluster - need to be taken out of the equation.

Hopefully, the recent progress that was made without them will convince both the owners and players.

(no offense!)

This.

[Reality]

If the players wanted to take the necessary steps to decertify (assuming they haven't already), they could pretty quickly do so. It's just a matter of checking a box.

And I'm sure the recertification checkbox is right under it :D

Oh the games people play ..

It's the NFLPA's version of, "I'm going to hold my breath until I get my way!"

At least it's been entertaining this off-season ..

-Reality

[Outlaw Heroes]

If Congress and the courts had actually ever required a decertification to occur, I might agree with you. However, courts have specifically held that a decertification is not necessary to discard the labor exemption. Thus, any balance between labor law and antitrust remain in tact.

Brown is surely the leading authority in this regard. While it did not hold that a decertification is necessary to evidence the collapse of the collective bargaining process it did hold that, in order to justify antitrust intervention, employer conduct must be "sufficiently distant in time and in circumstances from the collective-bargaining process." The owners and the NHL have argued, quite persuasively in my view, that a mere disclaimer of the union would not place the lockout sufficiently distant in time and circumstance from the collective-bargaining process to justify antitrust intervention and that the nonstatutory labor exemption should therefore survive such a disclaimer.

[Reality]

Funny how the lawyers arrive in full force when someone dares to point out the progress made without them ..

-Reality

[theogt]

Brown is surely the leading authority in this regard. While it did not hold that a decertification is necessary to evidence the collapse of the collective bargaining process it did hold that, in order to justify antitrust intervention, employer conduct must be "sufficiently distant in time and in circumstances from the collective-bargaining process." The owners and the NHL have argued, quite persuasively in my view, that a mere disclaimer of the union would not place the lockout sufficiently distant in time and circumstance from the collective-bargaining process to justify antitrust intervention and that the nonstatutory labor exemption should therefore survive such a disclaimer.Pretty shaky ground when the leading authority explicitly states that it's not making the claim.

I reject any strained view of the law that strips employees of the protections of labor laws while subjecting them to the restrictions of those laws. An employer cannot force its employees to unionize.

[Outlaw Heroes]

Funny how the lawyers arrive in full force when someone dares to point out the progress made without them ..

-Reality

Leaving aside, for the moment, that I agree with the general view that the lawyers have been interfering with progress in this dispute (and my history of posting would confirm as much), your constant snarky remarks about lawyers are somewhat provocative and counter-productive. I would have thought that you, of all people, have an interest in maintaining a friendly and open forum that invites all kinds of perspectives? Instead, you appear to be encouraging the lawyers to stay silent for fear of being accused of "arriv[ing] in full force" in order to somehow vindicate ourselves.

[Idgit]

Funny how the lawyers arrive in full force when someone dares to point out the progress made without them ..

-Reality

I'm surprised, honestly. I thought most lawyers understood that their chosen careers made them bottom feeders in the eyes of non-lawyers. I didn't know there was actual pride in the profession. It's sort of cute to see.

[tupperware]

This should have never went to the courts.

[theogt]

I'm surprised, honestly. I thought most lawyers understood that their chosen careers made them bottom feeders in the eyes of non-lawyers. I didn't know there was actual pride in the profession. It's sort of cute to see.I find this viewpoint to be more prevalent in poor, rural areas of the United States, rather than more educated, urban areas. I suppose we get a mixture of both on the board.

[Outlaw Heroes]

Pretty shaky ground when the leading authority explicitly states that it's not making the claim.

It's not clear to me what you mean by this. Is there a specific passage in Brown you have in mind and wish to cite?

I reject any strained view of the law that strips employees of the protections of labor laws while subjecting them to the restrictions of those laws. An employer cannot force its employees to unionize.

Nor am I clear what you mean by this. Nobody suggests that an employer can force its employees to unionize. Only that, once unionized, they have a legal obligation under the NLRA to bargain in good faith, which they fail to discharge when they disclaim their union status arbitrarily in order to cast the pall of antitrust litigation over the collective bargaining process.

[theogt]

It's not clear to me what you mean by this. Is there a specific passage in Brown you have in mind and wish to cite?Brown expressly rejects the opportunity to draw any boundaries in what constitutes a sufficient collapse of the collective bargaining process. Using it as the SOLE basis for drawing a distinction is quite the stretch. The opinion certainly suggests no particular temporal requirement. The bargaining process could presumably collapse instantaneously or simply fizzle out. Whether the bargaining process has collapsed for a day or a month or a year seems wholly irrelevant, which is probably why the Court chose to refrain from drawing any distinctions (and would probably never choose to do so).

Also, the courts suggestion that decertification is evidence of a breakdown is far from claiming that a decertification is necessary for a breakdown to exist.


Nobody suggests that an employer can force its employees to unionize.The suggestion is implied, certainly.

Only that, once unionized, they have a legal obligation under the NLRA to bargain in good faith, which they fail to discharge when they disclaim their union status arbitrarily in order to cast the pall of antitrust litigation over the collective bargaining process.No court has held this to be true.

[Idgit]

I find this viewpoint to be more prevalent in poor, rural areas of the United States, rather than more educated, urban areas. I suppose we get a mixture of both on the board.

My experience is obviously colored by what I see here in the Silicon Valley, but maybe you're right, overall. It's hard to say.

Many of the brightest people I know are lawyers. It kills me to see so much brainpower sitting on the sidelines not doing anything worthwhile. You just wonder what they might accomplish running companies or designing products or developing businesses.

[theogt]

My experience is obviously colored by what I see here in the Silicon Valley, but maybe you're right, overall. It's hard to say.

Many of the brightest people I know are lawyers. It kills me to see so much brainpower sitting on the sidelines not doing anything worthwhile. You just wonder what they might accomplish running companies or designing products or developing businesses.It may or may not surprise you to find that your own opinion of what is worthwhile is just that -- your own opinion.

And, by the way, lawyers are instrumental in running companies and developing business.

[Outlaw Heroes]

Brown expressly rejects the opportunity to draw any boundaries in what constitutes a sufficient collapse of the collective bargaining process. Using it as the SOLE basis for drawing a distinction is quite the stretch. The opinion certainly suggests no particular temporal requirement. The bargaining process could presumably collapse instantaneously or simply fizzle out. Whether the bargaining process has collapsed for a day or a month or a year seems wholly irrelevant, which is probably why the Court chose to refrain from drawing any distinctions (and would probably never choose to do so).


This is not correct. While the court in Brown refuses to define the outer boundaries of what would constitute sufficient time, following the collapse of the collective-bargaining process, to permit antitrust intervention against employer conduct, the court's language makes clear that sufficent time (whatever that might be) must have elapsed between the collapse and the intervention.

Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be 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. See, e. g., 50 F. 3d, at 1057 (suggesting that exemption lasts until collapse of the collective-bargaining relationship, as evidenced by decertification of the union); El Cerrito Mill & Lumber Co., 316 N. L. R. B., at 1006-1007 (suggesting that "extremely long" impasse, accompanied by "instability" or "defunctness" of multiemployer unit, might justify union withdrawal from group bargaining). We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate for us to do so without the detailed views of the Board, to whose "specialized judgment" Congress "intended to leave" many of the "inevitable questions concerning multiemployer bargaining bound to arise in the future." Buffalo Linen, 353 U. S., at 96 (internal quotation marks omitted); see also Jewel Tea, 381 U. S., at 710, n. 18.

Without having to define the boundaries, you would almost certainly be in a very small minority among legal commentators if you take the view that a disclaimer in the middle of negotiations (or even a day, or a month, after an impasse in negotiations is reached) would be sufficient to collapse the collective-bargaining process and invite antitrust intervention against employer conduct.

[Outlaw Heroes]

Many of the brightest people I know are lawyers. It kills me to see so much brainpower sitting on the sidelines not doing anything worthwhile. You just wonder what they might accomplish running companies or designing products or developing businesses.

Lawyers are an unfortunately risk-averse bunch, which is, I have always believed, the most significant impediment to having their talents put to more productive use.

[theogt]

This is not correct. While the court in Brown refuses to define the outer boundaries of what would constitute sufficient time, following the collapse of the collective-bargaining process, to permit antitrust intervention against employer conduct, the court's language makes clear that sufficent time (whatever that might be) must have elapsed between the collapse and the intervention.There are several issues with your analysis.

1. You're using Brown to suggest that some arbitrary boundary exists but Brown expressly rejects drawing any such boundary. A near instantaneous occurrence may be "sufficiently distant in time". There is no requisite passage of time. A decertification itself is instantaneous and no court has held that the labor exemption maintains past decertification. Courts have held the opposite, in fact, including the Brown court.

2. The opinion does NOT hold that an action must be sufficiently distant in order to evoke antitrust claims. It does, however, state that if an action is sufficiently distant in time it may erode the labor exemption. In pure logic terms, "if X, then Y" does not equate to "if Y, then X".

3. It is nonsensical that a continuing action could be the result of the collective bargaining process at its start only to cease being the result of the collective bargaining process at some undetermined point in the future, be it 6 months or a year. In reality, the lockout occurred ONLY because the collective bargaining process ceased. Had the players agreed to continue collective bargaining the lockout would have never been implemented.

Without having to define the boundaries, you would almost certainly be in a very small minority among legal commentators if you take the view that a disclaimer in the middle of negotiations (or even a day, or a month, after an impasse in negotiations is reached) would be sufficient to collapse the collective-bargaining process and invite antitrust intervention against employer conduct.Who is bargaining when one party refuses to bargain? Once again, I repeat, no employer can force its employees to unionize.

[Outlaw Heroes]

There are several issues with your analysis.

1. You're using Brown to suggest that some arbitrary boundary exists but Brown expressly rejects drawing any such boundary. A near instantaneous occurrence may be "sufficiently distant in time". There is no requisite passage of time. A decertification itself is instantaneous and no court has held that the labor exemption maintains past decertification. Courts have held the opposite, in fact, including the Brown court.

2. The opinion does NOT hold that an action must be sufficiently distant in order to evoke antitrust claims. It does, however, state that if an action is sufficiently distant in time it may erode the labor exemption. In pure logic terms, "if X, then Y" does not equate to "if Y, then X".

3. It is nonsensical that a continuing action could be the result of the collective bargaining process at its start only to cease being the result of the collective bargaining process at some undetermined point in the future, be it 6 months or a year. In reality, the lockout occurred ONLY because the collective bargaining process ceased. Had the players agreed to continue collective bargaining the lockout would have never been implemented.


I disagree with all of this. But I'm also growing weary of going back and forth disputing the correct interpretation of a passage in Brown. We're among a handful of people on this forum who could giving a flying **** about it's correct interpretation, so I'm not inclined to further clutter this thread by delving even further into such legal intricacies. Perhaps we'll discuss it over a beer or two someday. For now, I'd rather just agree to disagree and move on to our next dispute. It will be a good day when that dispute involves football, rather than the reasons we have none. ;)

[AdamJT13]

Where? That seems an odd statement without more context.

In his White vs. NFL rulings. Here is what Doty wrote in August, 1993 --


10.7 Relying on the foregoing, the court reached the following conclusions concerning the NFLPA in the April 30, 1993 order:

(a) The NFLPA has been lawfully formed and selected by the players to serve as the exclusive collective bargaining representative of all present and future NFL players.

(b) Neither the NFL nor any of its members have taken any action which in any way hindered or supported the formation of the NFLPA as the exclusive collective bargaining representative of all present and future NFL players.

(c) The NFL and its member clubs have lawfully recognized the NFLPA as the players' exclusive collective bargaining representative.

(d) Accordingly, the NFLPA is fully authorized and empowered to enter into a new collective bargaining agreement with the NFL and its member clubs.


The link (shortened) -- http://goo.gl/BLPyM

[theogt]

Perhaps we'll discuss it over a beer or two someday.Sounds like a admirable plan.

[theogt]

In his White vs. NFL rulings. Here is what Doty wrote in August, 1993 --


10.7 Relying on the foregoing, the court reached the following conclusions concerning the NFLPA in the April 30, 1993 order:

(a) The NFLPA has been lawfully formed and selected by the players to serve as the exclusive collective bargaining representative of all present and future NFL players.

(b) Neither the NFL nor any of its members have taken any action which in any way hindered or supported the formation of the NFLPA as the exclusive collective bargaining representative of all present and future NFL players.

(c) The NFL and its member clubs have lawfully recognized the NFLPA as the players' exclusive collective bargaining representative.

(d) Accordingly, the NFLPA is fully authorized and empowered to enter into a new collective bargaining agreement with the NFL and its member clubs.


The link (shortened) -- http://goo.gl/BLPyMThat does not state that the NFL did not request that the NFLPA recertify. Obviously, the NFL wanted the NFLPA to recertify and would not have agreed to any settlement had recertification not been part of the agreed upon process.

[Idgit]

It may or may not surprise you to find that your own opinion of what is worthwhile is just that -- your own opinion.

And, by the way, lawyers are instrumental in running companies and developing business.

My opinion is that you're adorable. But I don't think even you'd dispute the fact that what does or does not constitute worth is not a matter of opinion. It may be difficult to quantify, but worth is measurable.

[theogt]

My opinion is that you're adorable. But I don't think even you'd dispute the fact that what does or does not constitute worth is not a matter of opinion. It may be difficult to quantify, but worth is measurable.No, not really.

[speedkilz88]

No, not really.I agree, you are not adorable.

[FuzzyLumpkins]

It's not clear to me what you mean by this. Is there a specific passage in Brown you have in mind and wish to cite?



Nor am I clear what you mean by this. Nobody suggests that an employer can force its employees to unionize. Only that, once unionized, they have a legal obligation under the NLRA to bargain in good faith, which they fail to discharge when they disclaim their union status arbitrarily in order to cast the pall of antitrust litigation over the collective bargaining process.

Define good faith.

They wanted to decertify by popular consent. They voted to do so.

What statute gives the legal obligation to negotiate as a union? What statute gives them the legal obligation to remain a union.

They did not want to be a union so they are not any more.

[AdamJT13]

That does not state that the NFL did not request that the NFLPA recertify. Obviously, the NFL wanted the NFLPA to recertify and would not have agreed to any settlement had recertification not been part of the agreed upon process.

Wanting them to is not the same as "forcing" them to, which is what the players are implying. Obviously, Doty did not see it that way and ruled that the NFLPA recertified of its own accord.

[theogt]

Wanting them to is not the same as "forcing" them to, which is what the players are implying. Obviously, Doty did not see it that way and ruled that the NFLPA recertified of its own accord.No one said they were "forcing" them to but you.

[Outlaw Heroes]

Define good faith.

They wanted to decertify by popular consent. They voted to do so.

What statute gives the legal obligation to negotiate as a union? What statute gives them the legal obligation to remain a union.

They did not want to be a union so they are not any more.

Please, Fuzzy. I have no interest in arguing semantics with you. I refer you instead to the NLRA. It imposes an olbigation on unions to collectively bargain in good faith. The NFLPA disclaimed union status in the midst of negotations and has argued that this discharged any obligation it had under the NLRA. That's part of what's in dispute in this whole, tiresome, litigation process. I happen to think that the owners have a strong argument (one which the 8th Circuit will likely take seriously, even if the District Court doesn't) that the players cannot so easily throw off their collective bargaining obligations in favor of antitrust litigation. I hope we're all lucky enough to not have to find out just how persuasive the courts will find the argument.

[theogt]

Please, Fuzzy. I have no interest in arguing semantics with you. I refer you instead to the NLRA. It imposes an olbigation on unions to collectively bargain in good faith. The NFLPA disclaimed union status in the midst of negotations and has argued that this discharged any obligation it had under the NLRA. That's part of what's in dispute in this whole, tiresome, litigation process. I happen to think that the owners have a strong argument (one which the 8th Circuit will likely take seriously, even if the District Court doesn't) that the players cannot so easily throw off their collective bargaining obligations in favor of antitrust litigation. I hope we're all lucky enough to not have to find out just how persuasive the courts will find the argument.Once a previously bargained agreement has expired, there is no legal requirement, in the NLRA or otherwise, that requires a group of employees to continue as a union and to continue to collectively bargain as a union. The question is merely whether the labor exemption continues to apply despite the inapplicability of the labor laws.

[Outlaw Heroes]

Once a previously bargained agreement has expired, there is no legal requirement, in the NLRA or otherwise, that requires a group of employees to continue as a union and to continue to negotiate as a union.

The CBA had not expired when the NFLPA disclaimed union status. And while nobody disputes whether union status can be disclaimed in general, what is in dispute is whether disclaimer of union status in the midst of negotiations in favor of antitrust litigation in consistent with the obligation to bargain in good faith imposed by the NLRA.

[FuzzyLumpkins]

Please, Fuzzy. I have no interest in arguing semantics with you. I refer you instead to the NLRA. It imposes an olbigation on unions to collectively bargain in good faith. The NFLPA disclaimed union status in the midst of negotations and has argued that this discharged any obligation it had under the NLRA. That's part of what's in dispute in this whole, tiresome, litigation process. I happen to think that the owners have a strong argument (one which the 8th Circuit will likely take seriously, even if the District Court doesn't) that the players cannot so easily throw off their collective bargaining obligations in favor of antitrust litigation. I hope we're all lucky enough to not have to find out just how persuasive the courts will find the argument.

Its not semantics as much as how the term is interpreted in federal court. Good faith has meaning. i am wondering what that is as it keeps on being thrown out there.

The NLRA requires a union to negotiate in good faith. I fail to see how that requires them to remain a union. Once they are no longer a union the NLRA no longer applies.

Basically what you are saying is that they have to remain a union so that said union can negotiate in good faith. A union negotiating and good faith and a union remaining a union are not the same thing.

[Outlaw Heroes]

Its not semantics as much as how the term is interpreted in federal court. Good faith has meaning. i am wondering what that is as it keeps on being thrown out there.

"Good faith" is to be defined by the NLRB in the context of any claim before it that a party has failed to negotiate in good faith in accordance with its statutory obligation.

A union negotiating and good faith and a union remaining a union are not the same thing.

That depends. A sham disclaimer of union status for the purposes of circumventing and subverting the collective bargaining process, in favor of antitrust litigation aimed at gaining negotiating leverage, which is what the owners are claiming the players have done, may indeed be seen to be inconsistent with the union's obligation to bargain in good faith.

[theogt]

The CBA had not expired when the NFLPA disclaimed union status. And while nobody disputes whether union status can be disclaimed in general, what is in dispute is whether disclaimer of union status in the midst of negotiations in favor of antitrust litigation in consistent with the obligation to bargain in good faith imposed by the NLRA.It was in the final day of an extension. Surely your argument doesn't boil down to the players needing to wait one more business day.

[peplaw06]

Leaving aside, for the moment, that I agree with the general view that the lawyers have been interfering with progress in this dispute (and my history of posting would confirm as much), your constant snarky remarks about lawyers are somewhat provocative and counter-productive. I would have thought that you, of all people, have an interest in maintaining a friendly and open forum that invites all kinds of perspectives? Instead, you appear to be encouraging the lawyers to stay silent for fear of being accused of "arriv[ing] in full force" in order to somehow vindicate ourselves.This.

[gimmesix]

After reading the back and forth by lawyers throughout this and other threads, I've come to the conclusion that we need a cowboyszone judge to listen to the arguments and pronounce judgment.

I'd volunteer, but I'm afraid I'd find all the lawyers guilty and sentence them to death by the cruelest means available ... having to listen to each other's rhetoric. :D (Not being able to argue back, mind you, but only being allowed to listen until their heads explode.)

BTW, just to make it clear, I am just kidding. I like some lawyers ... just not the ones on this message board. ;)

[FuzzyLumpkins]

"Good faith" is to be defined by the NLRB in the context of any claim before it that a party has failed to negotiate in good faith in accordance with its statutory obligation.

Good faith means good faith?

That depends. A sham disclaimer of union status for the purposes of circumventing and subverting the collective bargaining process, in favor of antitrust litigation aimed at gaining negotiating leverage, which is what the owners are claiming the players have done, may indeed be seen to be inconsistent with the union's obligation to bargain in good faith.

How do you prove that though. The players are a collective. In essence does that not mean the majority of the individuals are intending to act in that manner or that the leadership of said collective intend that?

I ask this because if it is the latter then are they not saying that said leadership cannot negotiate on their behalf and if it is the former that is quite a thing to have to prove.

[dogberry]

Can we have a CBA without a union?

Would having a CBA or a union stop the anti-trust law suits?

[Hostile]

(b) Neither the NFL nor any of its members have taken any action which in any way hindered or supported the formation of the NFLPA as the exclusive collective bargaining representative of all present and future NFL players.I would really like to hear what Cooter Brown, Dough Boy, Cobra, and Outlaw Heroes think about the line in red. Maybe it's just me but that sounds like Doty has ruled that the NFLPA and only the NFLPA can negotiate CBAs for the players.

1. Is that correct?

2. Can a ruling like that stand? By this I am asking what if down the road the players want a Union called FOOLS. Are they unable to negotiate under another Union?

3. If they are unable to do this because of this ruling how can the NFLPA* even be allowed to decertify and recertify? It almost seems to me that they are flaunting Doty's ruling if that is the interpretation of it.

[SaltwaterServr]

(b) Neither the NFL nor any of its members have taken any action which in any way hindered or supported the formation of the NFLPA as the exclusive collective bargaining representative of all present and future NFL players.




That does not state that the NFL did not request that the NFLPA recertify. Obviously, the NFL wanted the NFLPA to recertify and would not have agreed to any settlement had recertification not been part of the agreed upon process.

Of course it states that the NFL did not make a request. It specifically says "any action". A request, by any reasonable definition, is an action if it's communicated by any means. I see zero wiggle room in Doty's statement.

[theogt]

Of course it states that the NFL did not make a request. It specifically says "any action". A request, by any reasonable definition, is an action if it's communicated by any means. I see zero wiggle room in Doty's statement.He's merely reciting stipulated facts between the parties in litigation. They have no bearing on reality or whether the NFL ever requested the NFLPA to certify as a union. The judge made no factual investigation, it's merely the facts as told to him by the parties for the sake of obtaining a ruling on the law.

[SaltwaterServr]

He's merely reciting stipulated facts between the parties in litigation. They have no bearing on reality or whether the NFL ever requested the NFLPA to certify as a union. The judge made no factual investigation, it's merely the facts as told to him by the parties for the sake of obtaining a ruling on the law.

And you know he made no investigation, how?

[theogt]

And you know he made no investigation, how?Based on, you know, reading the case. And my experience clerking for a federal judge, of course.

"Relying on the representations and sworn testimony of the parties ... "

This is just how courts work.

[SaltwaterServr]

Based on, you know, reading the case. And my experience clerking for a federal judge, of course.

"Relying on the representations and sworn testimony of the parties ... "

This is just how courts work.

Gotcha, part 10.6, first line.

I can sit and read chemistry text all day long, scan DNA readouts to define which proteins are being coded, memorize the diurnal life cycle of a cockroach's intestinal parasites, but I have to be perfectly candid in that legal renderings bore the living hell out of me.

[Plumfool]

If this has been posted, I'm sorry. But it was pretty interesting to read.

http://www.bizoffootball.com/index.php?option=com_content&view=article&id=774:former-chair-of-nlrb-sets-record-straight-on-nfl-nflpa-labor-issues&catid=54:nfl-labor-news&Itemid=79

[Outlaw Heroes]

:starspin I would really like to hear what Cooter Brown, Dough Boy, Cobra, and Outlaw Heroes think about the line in red. Maybe it's just me but that sounds like Doty has ruled that the NFLPA and only the NFLPA can negotiate CBAs for the players.

1. Is that correct?

2. Can a ruling like that stand? By this I am asking what if down the road the players want a Union called FOOLS. Are they unable to negotiate under another Union?

3. If they are unable to do this because of this ruling how can the NFLPA* even be allowed to decertify and recertify? It almost seems to me that they are flaunting Doty's ruling if that is the interpretation of it.

I can see where you got that interpretation, but I don't read the reference to "all present and future NFL players" that way Hos. To explain why, I have to get into a bit of history.

The decision Adam quoted from was actually the one approving the Stipulation and Settlement Agreement that the league and the players agreed upon in 1993. In passing on the fairness, reasonableness and adequacy of the SSA, the court considered objections from a number of players (58) and one team (Philadelphia), among others, challenging various provisions of the SSA. Sixteen college players also filed objections relating to the draft and entering player pool provisions of the SSA. Doty ultimately rejected all of these objections in finding the SSA to be fair, reasonable and adequate.

As you know, in order to enjoy the shield from antitrust law that the nonstatutory labor exemption provides, the terms of the SSA had to be reflected in a CBA. For purposes of restoring its union status so as to be able to negotiate and enter such a CBA, the NFLPA had collected authorization cards from a majority of the NFL players on the 1992 season-ending rosters designating the NFLPA as the exclusive collective bargaining representative of NFL players. By the time Doty handed down this ruling, a CBA negotiated between the NFL and the NFLPA, mirroring the terms of the SSA, was close to completion but not quite there.

As part of the decision, Judge Doty ruled upon the lawfulness of the formation (again) of the NFLPA as the exclusive collective bargaining representative of the NFL players (that's the passage Adam has quoted). I can only assume that he was asked to do so by the NFLPA and the NFL in order to prevent the very people who were challenging the SSA (including the 58 players and the 16 college players) from later challenging the CBA put in place to mirror its terms on the basis that the NFLPA was not authorized to represent them in negotiations. By ruling as he did, Doty forestalled such a challenge, since he found the NFLPA to be authorized to represent "all present and future NFL players", including the 58 players and 16 college players who had objected to the provisions of the SSA.

That's all the reference to "all present and future NFL players" is intended to accomplish, in my view.

[Outlaw Heroes]

It was in the final day of an extension. Surely your argument doesn't boil down to the players needing to wait one more business day.

That business day was important. If the players had waited until the CBA had expired, they would not, pursuant to their contractual obligations under the CBA have been permitted to initiate antitrust litigation for a period of 6 months. That would have provided the parties with a cooling-off period during which to negotiate a new CBA without the overhanging threat of antitrust litigation.

[Hostile]

That's all the reference to "all present and future NFL players" is intended to accomplish, in my view.Others will doubt the sincerity of this comment, but your explanation and that conclusion actually ease my mind. As proof I reference the inclusion of another Union called FOOLS as a discussion topic. It just seemed heavy handed to me that a Judge could wield that kind of power arbitrarily. It would be no different than a Judge telling me who has to be my attorney when I can afford my own, if that makes sense.

Thanks.

[dogberry]

Some players, teams, college players are in right-to-work states, does that give individuals the right to opt out of a union?

[theogt]

That business day was important. If the players had waited until the CBA had expired, they would not, pursuant to their contractual obligations under the CBA have been permitted to initiate antitrust litigation for a period of 6 months. That would have provided the parties with a cooling-off period during which to negotiate a new CBA without the overhanging threat of antitrust litigation.I'm not sure any of that has any relevance in the determination of "whether disclaimer of union status in the midst of negotiations in favor of antitrust litigation in consistent with the obligation to bargain in good faith imposed by the NLRA." Clearly they were no longer "in the midst of negotiations"; rather negotiations had collapsed and the owners had implemented a lockout.

You must be arguing that their contractual obligation to a waiting period enhanced their duties under labor law? But if they're not currently in violation of their contractual obligation, then I don't think there's much argument that their in violation of any potentially enhanced duties under labor law.

[Outlaw Heroes]

I'm not sure any of that has any relevance in the determination of "whether disclaimer of union status in the midst of negotiations in favor of antitrust litigation in consistent with the obligation to bargain in good faith imposed by the NLRA." Clearly they were no longer "in the midst of negotiations"; rather negotiations had collapsed and the owners had implemented a lockout.

You must be arguing that their contractual obligation to a waiting period enhanced their duties under labor law? But if they're not currently in violation of their contractual obligation, then I don't think there's much argument that their in violation of any potentially enhanced duties under labor law.

They clearly disclaimed the union in the midst of negotiations (and while the CBA remained in effect). In fact, they had just received an offer from the owners. The lockout came one day after their disclaimer and initiation of the lawsuit.

The only relevance of the contractual obligation is that it would have prevented them from initiating an antitrust suit if they had waited until the CBA had expired to disclaim.

[theogt]

They clearly disclaimed the union in the midst of negotiations (and while the CBA remained in effect). In fact, they had just received an offer from the owners. The lockout came one day after their disclaimer and initiation of the lawsuit.

The only relevance of the contractual obligation is that it would have prevented them from initiating an antitrust suit if they had waited until the CBA had expired to disclaim.The players received an offer that the owners admitted they knew would be rejected (I would even consider that a "bad faith" offer). The owners cannot indefinitely continue negotiations by submitting new proposals that they know the players will reject.

[Outlaw Heroes]

The players received an offer that the owners admitted they knew would be rejected(I would even consider that a "bad faith" offer). The owners cannot indefinitely continue negotiations by submitting new proposals that they know the players will reject.

Link?

[dogberry]

Are the owners not allowed a last offer that they will not go beyond? Are they required to keep offering more till the players say yes?

In 2009 Green Bay was about as close to having no earnings as an entity with $1 billion market value can have.

[theogt]

Link?Jeff Pash said it. If I wasn't in the office marking up a document, I'd take the time to search. I need to ban this website from my work computer.

[Outlaw Heroes]

Jeff Pash said it. If I wasn't in the office marking up a document, I'd take the time to search. I need to ban this website from my work computer.

Understood. I'm not doubting you. I've just never seen the quote. I'll try googling it, but if you trip upon it when you have a moment, I'd appreciate you posting it.

[stasheroo]

Are the owners not allowed a last offer that they will not go beyond? Are they required to keep offering more till the players say yes?

Yes. That's it exactly apparently. The owners need to present the all-powerful players with exactly the offer they deem acceptable before they will dignify said offer with a response.

In 2009 Green Bay was about as close to having no earnings as an entity with $1 billion market value can have.

"That don't befront" the players, as long as they get their bling money and the payola for the customized Escalades, and those $100,000.00 bar tabs.

[theogt]

In 2009 Green Bay was about as close to having no earnings as an entity with $1 billion market value can have.The Packers are a non-profit organization. They have no incentive to run a profit. In fact, they have every incentive NOT to run a profit (or rather to run a very small profit).

[xwalker]

The longer it takes to get a CBA, the more money the lawyers on both sides get paid.

[speedkilz88]

Pash's interview on Sirius (Don't know if it's what theogt is referring to or not.)

In the wake of NFL Players Association executive director DeMaurice Smith characterizing the NFL's last offer as "the worst deal in the history of professional sports," NFL executive Jeff Pash defended the league's proposal.

During an interview with Sirius NFL Radio, Pash took issue with Smith's comments and outlined the owners' proposal.

"I think that is quite a surprising statement," said Pash, the NFL's top negotiator. "The deal we had on the table, which we did not put out there as a take it or leave it, we didn't set a deadline saying, 'If you don't accept it by this time we are going to lock you out.' It was meant to keep the negotiations going and keep the process going. It would have paid the players over the next four years, 2011-2014, somewhere between $19 and 20 billion. It would have increased pay from 2011-2014 by $640 million on a league-wide basis, $20 million per club. It would have reduced the amount of work that is required in the offseason. We got rid of five weeks of the offseason program. We cut OTAs from 14 to 10 days. We made changes in the preseason. We put limits on full-padded practices in the regular season. We increased days off.

"We increased retirement benefits so that more than 2,000 retired players would have gotten almost a 60 percent increase in their pension benefit. We offered players the opportunity to have lifetime coverage in our medical plan. We offered for the first time to revise our disciplinary system so that they get a third-party neutral arbitrator on all the drug and steroids cases. We offered improvements in the disability plan, the 88 Plan, the post-career benefits, not just for medical but for post-career education and career transition programs. There was a lot on the table here. That would have been significant improvements. To say it was the worst deal in the history of sports suggests a lack of familiarity with a number of professional sports deals starting perhaps with the hockey deal in 2005 where players lost an entire season of pay and then went back to work with a 25 percent pay cut."

http://www.nationalfootballpost.com/Jeff-Pash-reacts-to-DeMaurice-Smiths-criticism-of-NFLs-last-offer.html

[Outlaw Heroes]

Pash's interview on Sirius (Don't know if it's what theogt is referring to or not.)



http://www.nationalfootballpost.com/Jeff-Pash-reacts-to-DeMaurice-Smiths-criticism-of-NFLs-last-offer.html

I hope that's not what theo was referring to. Nowhere in there does Pash say that the owner's knew the players wouldn't accept their offer.

[speedkilz88]

I hope that's not what theo was referring to. Nowhere in there does Pash say that the owner's knew the players wouldn't accept their offer.
I know that and you know that. Can't say the same for theogt. This would not be the first time.

[speedkilz88]

Here the nflpa even disputes was theogt claimed.

That is why we were very troubled to see your letter, and repeated press reports by yourself, Jeff Pash, and the owners, which claim that the owners met the players halfway in the negotiations, and that the owners offered a fair deal to the players.

Your statements are false.

http://helmetandpadsrequired.com/nflpa-responds-to-roger-goodells-letter/

[theogt]

I hope that's not what theo was referring to. Nowhere in there does Pash say that the owner's knew the players wouldn't accept their offer.It's not.

[speedkilz88]

Here's more comments from Pash on the offer:

http://www.theredzone.org/BlogDescription/tabid/61/EntryId/15646/Jeff-Pash-details-NFL-offer-to-union/Default.aspx

[speedkilz88]

More comments from Pash.

“Collective bargaining is about give and take,” he continued. “Candidly, there can be heated discussions and maddening fits and starts, and it takes a lot of time and hard work. There is nothing glamorous about it.”

“[The March 11] proposal could be the groundwork for a future of prosperity for the teams and players alike, for improvements in the game and for great competitive play for our fans,”http://nfllabor.com/2011/04/06/jeff-pash-on-negotiations-%E2%80%9Cwe-have-continuously-moved-toward-their-position-in-an-effort-to-reach-an-agreement%E2%80%9D/

[cobra]

I would really like to hear what Cooter Brown, Dough Boy, Cobra, and Outlaw Heroes think ...

You really don't want to know what I think. ;p

Though, reading through this thread, the colloquy theogt and Outlaw Heroes are having is doing a good job of painting the picture of the intricacies of the argument.

The answer is that there is no answer. We have some statutes (NLRA) and some caselaw that gives some guideposts in how these certification issues must be pursued and resolved. But they do not provide a certain answer. There are gaps in between these "rules". And from the minute interstices, massive arguments and lawsuits can spring. That's what lawyers get paid for: argue the interstices. If the rules were clear, then we would not need a legal system.

Both the NFLPA and the NFL have colorable arguments to make. I do not know the facts well enough to know whether the NFLPA followed the appropriate formalities necessary to decertify, but given the importance of the process and the lawyers involved, I would hope they would have done it appropriately. But I think it was a dangerous move on their part. The upside was that it would force the owners to the settlement table, but the owners could call their bluff. Ultimately, theogt is correct that you cannot force the players to unionize. But I think Outlaw Heroes is correct too: once unionized as a bargaining unit, there are formalities for the unit to follow. This of course leaves open the question of whether those formalities are followed. I think the Court's opinion on whether this was a contrived strategic mistake on the NFLPA's part will color the analysis of whether it was done properly. And this decision will be a driver in how this shakes out.

The players received an offer that the owners admitted they knew would be rejected (I would even consider that a "bad faith" offer). The owners cannot indefinitely continue negotiations by submitting new proposals that they know the players will reject.

God, I hope that is not the definition of good faith or I am screwed because I always make settlement demands I know the other side will not accept. Then I beat their brains in until they accept it! Luckily, there is an objective component to bad faith analysis. Otherwise, bad faith analysis would turn on the veto of an unreasonable person ("quit offering a billion dollars because you know I'll only accept ten!"). If the Court concludes it is a reasonable offer--and I think by any objective metric it probably can be considered that even if is a sure loser--I doubt she concludes that the NFL is acting in bad faith.


Ok, done with this. It's the weekend. Not law-time.

Going to the Mavs game tomorrow, and hoping that the Cowboys make it a three-peat next year for championship appearances (Rangers-Mavs-Cowboys)

[Hostile]

Thanks Cobra.

[theogt]

God, I hope that is not the definition of good faith or I am screwed because I always make settlement demands I know the other side will not accept.Depends on the context.

[theogt]

Wanting them to is not the same as "forcing" them to, which is what the players are implying. Obviously, Doty did not see it that way and ruled that the NFLPA recertified of its own accord.Another source confirming the owners requested that the players recertify:

When the CBA was worked out in ’93, the owners required the players to recertify as a union as part of the settlement because the owners wanted protection from lawsuits, like in 2003 when Maurice Clarett challenged the NFL’s draft rule on underclassmen.

http://sports.yahoo.com/nfl/news;_ylt=Akn3i_RaVNNQMuXsEJQZYdQ5nYcB?slug=jc-cole_litigation_best_weapon_for_nfl_players_agains t_owners_060211

[AMERICAS_FAN]

Both the NFLPA and the NFL have colorable arguments to make. I do not know the facts well enough to know whether the NFLPA followed the appropriate formalities necessary to decertify, but given the importance of the process and the lawyers involved, I would hope they would have done it appropriately. But I think it was a dangerous move on their part. . The upside was that it would force the owners to the settlement table, but the owners could call their bluff. Ultimately, theogt is correct that you cannot force the players to unionize. But I think Outlaw Heroes is correct too: once unionized as a bargaining unit, there are formalities for the unit to follow. This of course leaves open the question of whether those formalities are followed. I think the Court's opinion on whether this was a contrived strategic mistake on the NFLPA's part will color the analysis of whether it was done properly. And this decision will be a driver in how this shakes out.



Cobra, you shed some good light on some key points of this debate. To state a FACT, the last NFLPA Union contract with the owners stated that the union would have to wait 6 months to decertify once the last CBA was expired. Factually, the CBA was expired when the oners decided to end it, and they ended it legally by following the terms laid out in the old CBA to end it. 6 monts from that date then brings us to Sepetember 11, 2011 (by the owners' design, the opening date of the 2011 season), which under the terms of the old CBA, that owners and players agrreed to, is the date that the NFPA union can decertify.

So the NFLPA may have taken the right legal steps to decertify, but their timeline was premature - so the NFL is arguing. This is why the NFL has locked them out as a current union; because the NFL is arguing in court tht the NFLPA is still a union up until September 11, 2011, which is the first day on which their decertification can be recognized based on their agreed upon terms as a union per the old CBA. The NFLPA is counter-arguing that they have legally decertified that it should be recognized on their date of decertification because the old CBA was expired prematurely by the NFL's action to cancel it early.

So the question now is, how will the current appealate coart interpret this debate? Will they agree with the NFL that all terms of the old CBA still hold with respect to the terms bounding the union about the timeline of when it can decertify, or will the court instead conclude that any such timeline past the date of expulsion of the CBA can no longer hold once the CBA is prematurely terminated by one of the sides?

I think the former court concluded the later; I susepct the appealate cour is leaning towards the former conclusion - which is why it likely allowed the lockout to continue until it officially ruled. But that only favors the NFL temporarily - not long-term - until 9/11/11. And this is also why I think the court told both sides that neither side would like its ruling. That's becasue it may conclude that the lockout can continue until Spetember 11, 2011, but aht that point it would recognize the Union's decertification.

What's bad about that it would guarantee ther will be no labor talks unitl then, as the NFLPA will just wait out its time to regain leverage for negitiation discussions. But if that happens, and with no negotiations in the interim as a certainty, then the 2011 season will be lost for good, because there is no way that either side can get to 9/11/11 without a traning capm or preaseson and expect football to be played. Cnacel the 2011 season, and both sides lost more than either side should ever be willing to lose. That's why waiting this out is a loe lose, which is why the coaurt is telling both sides it is in ther best interests to work out a new agreement before it rules offically.

[Hostile]

Cobra, you shed some good light on some key points of this debate. To state a FACT, the last NFLPA Union contract with the owners stated that the union would have to wait 6 months to decertify once the last CBA was expired. Factually, the CBA was expired when the oners decided to end it, and they ended it legally by following the terms laid out in the old CBA to end it. 6 monts from that date then brings us to Sepetember 11, 2011 (by the owners' design, the opening date of the 2011 season), which under the terms of the old CBA, that owners and players agrreed to, is the date that the NFPA union can decertify.

So the NFLPA may have taken the right legal steps to decertify, but their timeline was premature - so the NFL is arguing. This is why the NFL has locked them out as a current union; because the NFL is arguing in court tht the NFLPA is still a union up until September 11, 2011, which is the first day on which their decertification can be recognized based on their agreed upon terms as a union per the old CBA. The NFLPA is counter-arguing that they have legally decertified that it should be recognized on their date of decertification because the old CBA was expired prematurely by the NFL's action to cancel it early.

So the question now is, how will the current appealate coart interpret this debate? Will they agree with the NFL that all terms of the old CBA still hold with respect to the terms bounding the union about the timeline of when it can decertify, or will the court instead conclude that any such timeline past the date of expulsion of the CBA can no longer hold once the CBA is prematurely terminated by one of the sides?

I think the former court concluded the later; I susepct the appealate cour is leaning towards the former conclusion - which is why it likely allowed the lockout to continue until it officially ruled. But that only favors the NFL temporarily - not long-term - until 9/11/11. And this is also why I think the court told both sides that neither side would like its ruling. That's becasue it may conclude that the lockout can continue until Spetember 11, 2011, but aht that point it would recognize the Union's decertification.

What's bad about that it would guarantee ther will be no labor talks unitl then, as the NFLPA will just wait out its time to regain leverage for negitiation discussions. But if that happens, and with no negotiations in the interim as a certainty, then the 2011 season will be lost for good, because there is no way that either side can get to 9/11/11 without a traning capm or preaseson and expect football to be played. Cnacel the 2011 season, and both sides lost more than either side should ever be willing to lose. That's why waiting this out is a loe lose, which is why the coaurt is telling both sides it is in ther best interests to work out a new agreement before it rules offically.Great post asking good questions.

[theogt]

Cobra, you shed some good light on some key points of this debate. To state a FACT, the last NFLPA Union contract with the owners stated that the union would have to wait 6 months to decertify once the last CBA was expired. Factually, the CBA was expired when the oners decided to end it, and they ended it legally by following the terms laid out in the old CBA to end it. 6 monts from that date then brings us to Sepetember 11, 2011 (by the owners' design, the opening date of the 2011 season), which under the terms of the old CBA, that owners and players agrreed to, is the date that the NFPA union can decertify.

So the NFLPA may have taken the right legal steps to decertify, but their timeline was premature - so the NFL is arguing. This is why the NFL has locked them out as a current union; because the NFL is arguing in court tht the NFLPA is still a union up until September 11, 2011, which is the first day on which their decertification can be recognized based on their agreed upon terms as a union per the old CBA. The NFLPA is counter-arguing that they have legally decertified that it should be recognized on their date of decertification because the old CBA was expired prematurely by the NFL's action to cancel it early.

So the question now is, how will the current appealate coart interpret this debate? Will they agree with the NFL that all terms of the old CBA still hold with respect to the terms bounding the union about the timeline of when it can decertify, or will the court instead conclude that any such timeline past the date of expulsion of the CBA can no longer hold once the CBA is prematurely terminated by one of the sides?

I think the former court concluded the later; I susepct the appealate cour is leaning towards the former conclusion - which is why it likely allowed the lockout to continue until it officially ruled. But that only favors the NFL temporarily - not long-term - until 9/11/11. And this is also why I think the court told both sides that neither side would like its ruling. That's becasue it may conclude that the lockout can continue until Spetember 11, 2011, but aht that point it would recognize the Union's decertification.

What's bad about that it would guarantee ther will be no labor talks unitl then, as the NFLPA will just wait out its time to regain leverage for negitiation discussions. But if that happens, and with no negotiations in the interim as a certainty, then the 2011 season will be lost for good, because there is no way that either side can get to 9/11/11 without a traning capm or preaseson and expect football to be played. Cnacel the 2011 season, and both sides lost more than either side should ever be willing to lose. That's why waiting this out is a loe lose, which is why the coaurt is telling both sides it is in ther best interests to work out a new agreement before it rules offically.The owners aren't making any arguments based on the contract language, at least not in their briefs filed with the court. The owners and players agreed to an extension that lasted through Friday, March 11. The union disclaimed and filed decertification papers on that day, thereby not having to wait 6 months before filing an antitrust lawsuit.

The primary question being decided by the 8th circuit isn't related to any of the arguments in your post. It's related to whether the federal judge has jurisdiction to issue an injunction.

[speedkilz88]

It was one of the arguments, but there are a lot more than just that one.

Starts on pg 27 of brief, but 34 of pdf.

B. Plaintiffs’ waiver argument lacks merit.

Plaintiffs are simply wrong that the NFL waived its right to challenge the NFLPA’s disclaimer, in part because they ignore (and fail to quote) the en-tirety of the provision on which they rely, CBA Article LVII, Section 3(b):

[A]fter the expiration of the express term of this Agreement, in the event that at that time or any time thereafter a majority of players indicate that they wish to end the collective bargaining status of the NFLPA on or after expiration of this Agreement, the NFL ... waive[s] any rights [it] may have to assert any antitrust labor ex-emption defense based upon any claim that the termination by the NFLPA of its status as a collective bargaining representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.

(App. 331-32 (emphasis added).)

By its plain terms, this provision applies only when the decision “to end the collective bargaining status of the NFLPA” is made “at … or any time []after” the “express term” of the CBA. It is undisputed that the NFLPA’s (purported) disclaimer occurred before the CBA expired (App. 42-43 (¶¶54-61).) The predi-cate for Section 3(b) is therefore not met; the provision cannot apply.


Plaintiffs know this; the NFLPA told its membership that it needed to dis-claim interest before expiration of the CBA to avoid application of companion provision Section 3(a), which provides that “if the NFLPA is in existence as a union [following expiration of the CBA], the Parties agree that no ... player represented by the NFLPA shall be able to commence an action, or assert a claim, under the antitrust laws for” at least six months. (App. 331.)

The NFLPA’s Guide to the Lockout, in a section by its General Counsel, could not be more explicit: “Q. Can we remain a union after expiration, see how collective bargaining goes, and then renounce our union status later if collective bargain-ing doesn’t work? A. We could, but there are … important reasons why we should not. First, the current CBA says that we cannot sue for six months if we remain as a union at any time after expiration.” (App. 300.)

Their union having made the tactical election to avoid the six-month bar of Section 3(a), plaintiffs cannot attempt to invoke the companion provision in Section 3(b).7 And even if the predicate for Section 3(b) were met, the provi-sion cannot waive the NFL’s right to pursue (or the Board’s right to remedy) an unfair labor practice. E.g., J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944).

[theogt]

It was one of the arguments, but there are a lot more than just that one.

Starts on pg 27 of brief, but 34 of pdf.No, that's a separate argument entirely, and it's a defensive one. The players made a (ridiculous) argument that Section 3(b) of Article LVII of the CBA operated to prevent the owners from asserting a labor exemption.

This discussion deals with Section 3(a), which states that if the union is in existence at the expiration of the CBA, they players are required to wait 6 months to file an antitrust case. In the passage you quoted, the owners even state, "It is undisputed that the NFLPA’s (purported) disclaimer occurred before the CBA expired."

The 8th Circuit is not passing on either issue.

[AMERICAS_FAN]

No, that's a separate argument entirely, and it's a defensive one. The players made a (ridiculous) argument that Section 3(b) of Article LVII of the CBA operated to prevent the owners from asserting a labor exemption.

This discussion deals with Section 3(a), which states that if the union is in existence at the expiration of the CBA, they players are required to wait 6 months to file an antitrust case. In the passage you quoted, the owners even state, "It is undisputed that the NFLPA’s (purported) disclaimer occurred before the CBA expired."

The 8th Circuit is not passing on either issue.

Isn't the point of an appeal to challenge the findings of the former court? In that court this was central to the case - that the NFL claimed the NFLPA was still a union when the CBA expeired and that htey did not decertify correctly under the terms of CBA - terms that the union agreed to (whether or not they may have taken the correct legal steps a union needs to take to decertify). That court ruled in the favor of the decertification, basically ignoring the CBA language. The appeals court ir reviewing that court's ruling, are they not? In that case they're indireclty ruling on the issue. Am I missing something here?

[Dough Boy]

He's merely reciting stipulated facts between the parties in litigation. They have no bearing on reality or whether the NFL ever requested the NFLPA to certify as a union. The judge made no factual investigation, it's merely the facts as told to him by the parties for the sake of obtaining a ruling on the law.

This is 100% true regarding opposing counsel stipulating to certain facts. It allows the process to move much faster and does not tie up the courts time. If opposing counsel 'stipulate' or agree to certain facts, the Judge will rarely do any investigation into said facts.

[Dough Boy]

:starspin

I can see where you got that interpretation, but I don't read the reference to "all present and future NFL players" that way Hos. To explain why, I have to get into a bit of history.

The decision Adam quoted from was actually the one approving the Stipulation and Settlement Agreement that the league and the players agreed upon in 1993. In passing on the fairness, reasonableness and adequacy of the SSA, the court considered objections from a number of players (58) and one team (Philadelphia), among others, challenging various provisions of the SSA. Sixteen college players also filed objections relating to the draft and entering player pool provisions of the SSA. Doty ultimately rejected all of these objections in finding the SSA to be fair, reasonable and adequate.

As you know, in order to enjoy the shield from antitrust law that the nonstatutory labor exemption provides, the terms of the SSA had to be reflected in a CBA. For purposes of restoring its union status so as to be able to negotiate and enter such a CBA, the NFLPA had collected authorization cards from a majority of the NFL players on the 1992 season-ending rosters designating the NFLPA as the exclusive collective bargaining representative of NFL players. By the time Doty handed down this ruling, a CBA negotiated between the NFL and the NFLPA, mirroring the terms of the SSA, was close to completion but not quite there.

As part of the decision, Judge Doty ruled upon the lawfulness of the formation (again) of the NFLPA as the exclusive collective bargaining representative of the NFL players (that's the passage Adam has quoted). I can only assume that he was asked to do so by the NFLPA and the NFL in order to prevent the very people who were challenging the SSA (including the 58 players and the 16 college players) from later challenging the CBA put in place to mirror its terms on the basis that the NFLPA was not authorized to represent them in negotiations. By ruling as he did, Doty forestalled such a challenge, since he found the NFLPA to be authorized to represent "all present and future NFL players", including the 58 players and 16 college players who had objected to the provisions of the SSA.

That's all the reference to "all present and future NFL players" is intended to accomplish, in my view.
Agreed

[theogt]

This is 100% true regarding opposing counsel stipulating to certain facts. It allows the process to move much faster and does not tie up the courts time. If opposing counsel 'stipulate' or agree to certain facts, the Judge will rarely do any investigation into said facts.And here the parties had agreed to the settlement and the CBA, so they merely wanted the judge to put his rubber stamp on it. They'll tell him whatever he needs to hear to get that done.

[SkinsFan28]

And here the parties had agreed to the settlement and the CBA, so they merely wanted the judge to put his rubber stamp on it. They'll tell him whatever he needs to hear to get that done.
1) that may be so, but if they stipulated to it at that point, it seems to me that they can't come back and say well you made us(except in the court of public opinion).

Theo, I certainly understand that you could be a good lawyer, and if I ever need one to argue my point to the nth degree I would look to you, that's for certain.

The absolutism however kinda fails on a web forum where ideas and thoughts are being reflected back and forth, especially when the legal judges that are assigned to rule have already reflected some level of split decision on the matters at hand.

[theogt]

1) that may be so, but if they stipulated to it at that point, it seems to me that they can't come back and say well you made us(except in the court of public opinion).They're not making the claim in court, so I don't know what you're referencing. But if they needed to for whatever reason, they could certainly make reference to whatever facts they feel necessary, regardless of what you think is fair or not. If there is some evidentiary rule against it, let me know.

Theo, I certainly understand that you could be a good lawyer, and if I ever need one to argue my point to the nth degree I would look to you, that's for certain.

The absolutism however kinda fails on a web forum where ideas and thoughts are being reflected back and forth, especially when the legal judges that are assigned to rule have already reflected some level of split decision on the matters at hand.You only think the absolutism fails because you disagree with my position. I'm not concerned with whether or not you agree with me; I'm only concerned with having the right answer. If I don't think I have the right answer, I don't address the issue.

[AdamJT13]

Another source confirming the owners requested that the players recertify:

An opinion piece by a member of the media 18 years later is more of a "source" for the facts of a case than a court document issued by the judge at the end of the case? Wow.

[AdamJT13]

And here the parties had agreed to the settlement and the CBA, so they merely wanted the judge to put his rubber stamp on it. They'll tell him whatever he needs to hear to get that done.

So they lie in court to get the case settled?

[theogt]

So they lie in court to get the case settled?If that's what you want to call it, then yes. I wouldn't call it a lie, however.

[AdamJT13]

If that's what you want to call it, then yes. I wouldn't call it a lie, however.

Stating something in court as being true when it's not actually true isn't lying?

[theogt]

Stating something in court as being true when it's not actually true isn't lying?Of course it's more nuanced than that, but whatever. Call it what you like.

[AdamJT13]

Of course it's more nuanced than that, but whatever. Call it what you like.

I'll stick with the actual definition of the word, thanks. It's lying.

[theogt]

I'll stick with the actual definition of the word, thanks. It's lying.Excuse me, you'll stick with *YOUR* definition and *YOUR* application of the definition.

[AdamJT13]

Excuse me, you'll stick with *YOUR* definition and *YOUR* application of the definition.

I haven't written any dictionaries. But if you want to pretend that, too, nobody will stop you.

[peplaw06]

So they lie in court to get the case settled?Hard to be a lie when both sides state under oath that it's true.

[AdamJT13]

Hard to be a lie when both sides state under oath that it's true.

You'd think so, but theogt claims that just because they stated it in court, that doesn't mean that it's true.

[SkinsFan28]

They're not making the claim in court, so I don't know what you're referencing. But if they needed to for whatever reason, they could certainly make reference to whatever facts they feel necessary, regardless of what you think is fair or not. If there is some evidentiary rule against it, let me know.
from the players response:
2. The NFL Waived Any Argument That The
Disclaimer Was A “Sham.”
In exchange for the players’ agreement to re-unionize, the owners
promised ...

That is a false statement when coupled with Judge Doty's stipulation of facts quoted earlier in the thread.

You only think the absolutism fails because you disagree with my position. I'm not concerned with whether or not you agree with me; I'm only concerned with having the right answer. If I don't think I have the right answer, I don't address the issue.I think that generally, absolutism fails on a web board regardless of whether I side with the person who states the absolutes or not. And when the issue at hand has been ruled on against the way you define it, then absolutism certainly doesn't add to an intelligent discussion.

[theogt]

You'd think so, but theogt claims that just because they stated it in court, that doesn't mean that it's true.

from the players response:Listen very closely both of you. I'm going to explain this to you, so you know how it works. I will not explain this again, so if you ignore it, you're choosing to be ignorant of the facts.

The players did not admit or state, and Judge Doty did not hold, that the settlement and the CBA (including the agreement by the players to re-certify) were not part of an agreed upon settlement by the players and the owners, or that the requirement that the player re-certify was not at the request of the NFL.

The settlement that Doty was approving was an agreed upon settlement with negotiated terms between the parties. The parties knew this then and they know this today. Doty knew it. The passage Adam quoted has no impact on this at all. The players were merely stipulating that there was nothing coercive about the agreement. There was, in fact, nothing coercive about the settlement. It was an arms-length negotiation agreed upon by both parties. However, the only reason the players re-certified was because it was a term that the owners wanted (and requested) in order to agree to the settlement and the CBA.

Fortunately, no one claimed, including the initial post in this thread which started this discussion, that the owners forced the players to re-certify. The players agreed to re-certify at the request of the owners in order to come to a mutual agreement. This is a fact, an oft-reported one. Neither side denies this. And the passage that Adam quoted does not provide any evidence whatsoever that it is not true.

I cannot explain this in any more simple terms.

[cobra]

Though I have resisted doing this for the duration of this legal fight, on my lunch break, I went back and read the 8th circuit briefs and did some poking around on Westlaw. This has steeled my belief that the sham dissolution of the NFLPA was a strategic mistake. The NFLPA has put all of their eggs in the "disclaimer" basket, and the way they went about it is extremely suspect given subsequent actions.

I think the NFL will prevail in the 8th Circuit. Their arguments with respect to jurisdiction are compelling and dispositive. Moreover, their arguments regarding the sham "disclaimer" are more compelling. The Court is going to be very hesitant to establish precedent that this "disclaimer" action can be undertaken at the bargaining table for strategic avoidance of the NLRB, while also continuing to collectively bargain.

The NFL does not do well at the courthouse, but I think they win this one. NFLPA should have used the brief leverage they had with respect to the dissolution and injunction to get he best deal they could have. I suspect the 8th Circuit will reverse and remand, thereby emboldening the owners.

[Also, as a strictly subjective matter of opinion, regardless of the issue I would put my money on Clement and Boies over Olson (for whom I have immense respect.) They are three of the best, but Clement and Boies are near unbeatable.]

[superpunk]

Though I have resisted doing this for the duration of this legal fight, on my lunch break, I went back and read the 8th circuit briefs and did some poking around on Westlaw. This has steeled my belief that the sham dissolution of the NFLPA was a strategic mistake. The NFLPA has put all of their eggs in the "disclaimer" basket, and the way they went about it is extremely suspect given subsequent actions.

I think the NFL will prevail in the 8th Circuit. Their arguments with respect to jurisdiction are compelling and dispositive. Moreover, their arguments regarding the sham "disclaimer" are more compelling. The Court is going to be very hesitant to establish precedent that this "disclaimer" action can be undertaken at the bargaining table for strategic avoidance of the NLRB, while also continuing to collectively bargain.

The NFL does not do well at the courthouse, but I think they win this one. NFLPA should have used the brief leverage they had with respect to the dissolution and injunction to get he best deal they could have. I suspect the 8th Circuit will reverse and remand, thereby emboldening the owners.

[Also, as a strictly subjective matter of opinion, regardless of the issue I would put my money on Clement and Boies over Olson (for whom I have immense respect.) They are three of the best, but Clement and Boies are near unbeatable.]

This is the conclusion I came to, as well.

[theogt]

Though I have resisted doing this for the duration of this legal fight, on my lunch break, I went back and read the 8th circuit briefs and did some poking around on Westlaw. This has steeled my belief that the sham dissolution of the NFLPA was a strategic mistake. The NFLPA has put all of their eggs in the "disclaimer" basket, and the way they went about it is extremely suspect given subsequent actions.

I think the NFL will prevail in the 8th Circuit. Their arguments with respect to jurisdiction are compelling and dispositive. Moreover, their arguments regarding the sham "disclaimer" are more compelling. The Court is going to be very hesitant to establish precedent that this "disclaimer" action can be undertaken at the bargaining table for strategic avoidance of the NLRB, while also continuing to collectively bargain.

The NFL does not do well at the courthouse, but I think they win this one. NFLPA should have used the brief leverage they had with respect to the dissolution and injunction to get he best deal they could have. I suspect the 8th Circuit will reverse and remand, thereby emboldening the owners.

[Also, as a strictly subjective matter of opinion, regardless of the issue I would put my money on Clement and Boies over Olson (for whom I have immense respect.) They are three of the best, but Clement and Boies are near unbeatable.]Legally, they're not continuing to collectively bargain. The owners agreed (in a letter filed with the court) to not use any negotiations during litigation against the players.

Also, FYI, disclaimers are a legally cognizable form of disbanding a union. There's plenty of case law on that point. The question, rather, is whether Norris-Laguardia strips the court of jurisdiction to issue an injunction, not whether the disclaimer is valid.

[Sam I Am]

Hard to be a lie when both sides state under oath that it's true.

I'm not sure what this discussion is about, but I can say just because both sides state something, that damn well doesn't make it true.

[SkinsFan28]

Listen very closely both of you. I'm going to explain this to you, so you know how it works. I will not explain this again, so if you ignore it, you're choosing to be ignorant of the facts.

The players did not admit or state, and Judge Doty did not hold, that the settlement and the CBA (including the agreement by the players to re-certify) were not part of an agreed upon settlement by the players and the owners, or that the requirement that the player re-certify was not at the request of the NFL.

The settlement that Doty was approving was an agreed upon settlement with negotiated terms between the parties. The parties knew this then and they know this today. Doty knew it. The passage Adam quoted has no impact on this at all. The players were merely stipulating that there was nothing coercive about the agreement. There was, in fact, nothing coercive about the settlement. It was an arms-length negotiation agreed upon by both parties. However, the only reason the players re-certified was because it was a term that the owners wanted (and requested) in order to agree to the settlement and the CBA.

Fortunately, no one claimed, including the initial post in this thread which started this discussion, that the owners forced the players to re-certify. The players agreed to re-certify at the request of the owners in order to come to a mutual agreement. This is a fact, an oft-reported one. Neither side denies this. And the passage that Adam quoted does not provide any evidence whatsoever that it is not true.

I cannot explain this in any more simple terms.
They re-certified because they also wanted the CBA, and it was in their best interest so they chose to re-certify. It's not a difficult concept that both parties wanted them to re-certify. Putting it all on the NFL goes against the wording of Judge Doty. Fortunately for me, I never suggested anyone forced anyone either.

I do believe that the players attempt to put the NFL on the defensive about the first re-certification because their argument that the NFL does not have the ability to claim "sham" is a based on a faulty premise.

[theogt]

They re-certified because they also wanted the CBA, and it was in their best interest so they chose to re-certify. It's not a difficult concept that both parties wanted them to re-certify. Putting it all on the NFL goes against the wording of Judge Doty. Fortunately for me, I never suggested anyone forced anyone either.

I do believe that the players attempt to put the NFL on the defensive about the first re-certification because their argument that the NFL does not have the ability to claim "sham" is a based on a faulty premise.It would have been to the players benefit (and the owners detriment) not to re-certify and not to agree to those provisions in the CBA. You have to think that if they players could have gotten the NFL to agree to a deal without providing for re-certification, they would have done so. However, that was a necessary step in getting the deal done, so they agreed to it.

[cobra]

Legally, they're not continuing to collectively bargain.

The 8th Circuit can dispose of this issue on jurisdictional grounds under the Norris-LaGuardia Act by concluding that it is a "labor dispute" under § 113 of the Act without reaching the question of whether the NFLPA disclaimer was valid. I would expect them to pass on that issue because they can reverse and remand on other grounds.

The owners agreed (in a letter filed with the court) to not use any negotiations during litigation against the players

The Owners are free to agree to not use the continued negotiation against them in litigation. Of course, filing it with the Court render's the owner's agreement moot. It strikes me as about as effective as a motion in limine in a bench trial ("Judge, please do not let him introduce evidence that I kill puppies because it will be prejudicial against me.")

That being said, there is plenty of other evidence (temporally and as evidenced in contemporaenous actions and statements of the NFLPA) to find that it is a sham dissolution of the NFLPA and that it is still the de facto representative of the players.

Also, FYI, disclaimers are a legally cognizable form of disbanding a union. There's plenty of case law on that point.True. But now we are just going to get in a tautological argument about whether this was one of the "legally cognizable" disclaimers, or whether this was a "sham" disclaimer. And I merely said that given the circumstances, I feel certain the Court will not bless this action because it turns the statutory authority on its head. The Court is not bound by the form of what the NFLPA called their action. The Court can consider the circumstances and effect of their actions. And here it is obvious this was a contrived strategic moved launched while at the bargaining table to avoid the established standards of resolving labor disputes.

In short, the NFLPA's action to "disclaim" was too clever by half. And I think it will blow up in their face.

[theogt]

The 8th Circuit can dispose of this issue on jurisdictional grounds under the Norris-LaGuardia Act by concluding that it is a "labor dispute" under § 113 of the Act without reaching the question of whether the NFLPA disclaimer was valid. I would expect them to pass on that issue because they can reverse and remand on other grounds.It's a little more nuanced than that, but yes that is THE KEY decision in the case.

The Owners are free to agree to not use the continued negotiation against them in litigation. Of course, filing it with the Court render's the owner's agreement moot. It strikes me as about as effective as a motion in limine in a bench trial ("Judge, please do not let him introduce evidence that I kill puppies because it will be prejudicial against me.")It's legally effective. If the argument isn't included in the briefs and is not in the trial judge's decision, then the appellate court can't rule on it.

That being said, there is plenty of other evidence (temporally and as evidenced in contemporaenous actions and statements of the NFLPA) to find that it is a sham dissolution of the NFLPA and that it is still the de facto representative of the players.Simply being temporary does not mean that it's a "sham". The players lose significant economic benefits and legal rights when they disband the union. It's not a mere flip of a switch without any real world impact.

True. But now we are just going to get in a tautological argument about whether this was one of the "legally cognizable" disclaimers, or whether this was a "sham" disclaimer. And I merely said that given the circumstances, I feel certain the Court will not bless this action because it turns the statutory authority on its head. The Court is not bound by the form of what the NFLPA called their action. The Court can consider the circumstances and effect of their actions. And here it is obvious this was a contrived strategic moved launched while at the bargaining table to avoid the established standards of resolving labor disputes.

In short, the NFLPA's action to "disclaim" was too clever by half. And I think it will blow up in their face.The disclaimer turns no relevant statutory authority on its head. The determination of whether it's a "sham" or not has no impact whatsoever on the NLA decision. The question is whether 104(a) of the NLA applies to (1) employer actions at all (the majority of circuit courts have held that it does not) and (2) whether it applies in a situation where a lockout was implemented once collectively bargaining ceased to occur.

I'm not sure why you think a disclaimer is "clever" in a pejorative fashion. The Supreme Court has stated that employees can either seek the protection of antitrust law or unionize and seek the protection of labor laws. If they choose to discard the protections of labor law, they should be able to also reap the benefits of antitrust law. Courts have specifically held that a decertification ends the application of labor law. The players voted unanimously to decertify and the union management disclaimed the union. The best argument against those actions is that the somehow failed to check an appropriate box in the list of procedures to effect those decisions.

[Verdict]

Way to tank what many are calling progress. What a dumb statement.


I agree. It not only impedes progress due to the fact that it has the likely effect of chilling those negotiations, it also alerts the other side to the fact that you will be using that against them in the future, which weakens your case when actually litigated.

At first blush, making this statement appears very amateurish, unless the NFL ownership group feel that they have such a strong position that they are attempting to close the noose around the players neck and really apply additional pressure.

Even though I feel like the owners are bargaining from a position of strength, I can't see them being so confident that the latter is true. At first blush, it would appear that the person who made this statement didn't think it through very well prior to making this statement.

[cobra]

theogt, I'm not about to spend any more time arguing this point because neither of us have definitive answers--we just have arguments--and I have better ways to spend my time than arguing the gray areas of the law.

And, I've read the players brief, so I am familiar with the argument you are making. And I've already stated that in my opinion the league's analysis is more persuasive and will likely prevail. Have you be a proxy for the players' argument isn't going to change my analysis, so there is no reason to create an argument. I'll address these last points, and the I need to get back to paying legal arguments.

It's a little more nuanced than that, but yes that is THE KEY decision in the case.

Yes, I understand it is nuanced. I understand both arguments. And the players argument on this key issue is the players' weakest point and is a tortured argument. The owners will prevail on this.

[The disclaimer is] legally effective.

As I noted, you are just wanting to make a tautological argument now. It will get nowhere.

Simply being temporary does not mean that it's a "sham".

I did not argue that the permanence of the maneuver is dispositive. Neither did the league argue it. I said the temporal circumstances, which means, based on when it was done in a timing sequence with other actions taken by the players and the lawsuit. Moreover, the contemporaneous documents and arguments show that it was done for strategic collective bargaining reasons.

The disclaimer turns no relevant statutory authority on its head.

There is an established framework on how collective bargaining occurs and a framework on what happens when an impasse occurs. There is also authority on what happens with collective bargaining collapses. Congress and the courts have labored mightily to develop a process to balance rights among the parties.

The NFLPA's strategic use of the disclaimer like it is doing turns this all on its head, wherein a bargaining unit could "flip a switch" and run to the Courts for bargaining advantages without following any of the established procedures. (And it can be a simple flipping of the switch if the union and the players are colluding and know that the union will reform and a new CBA will be reached).

Yes, divorced from the bargaining table, in the normal course of the life of a union a disclaimer is recognized and effective. Had the players done this two years ago, it wouldn't be an issue. But there is no reasonable argument that can be made that this was done for anything other than a strategic bargaining purpose.

We can go round and round on this. At the end of the day, the best presenters of the argument are Olson and Clement/Boies. They've made the best arguments from both sides. I am impressed with the hash that Olson has made, but I think Clement/Boies have the better legal argument.

And I think had the players not tried this "disclaimer" process when they did and under the circumstances they did, Olson would have been in a better position. The only good that comes from Smith's move is that it jump-started this deal and made it more likely than not that a resolution will occur soon. Had the players let this play out in a way that put them in the best legal position, the delay would be much longer. As a litigator, I am quite familiar with taking positions for strategic advantages which are ultimately unavailing, so I get it. And in the end, this was always going to be resolved by a new CBA anyhow. Perhaps the players needed the short term leverage, but they better get this done soon. In my opinion, they will lose a ton of leverage when they lose in the 8th circuit.

[theogt]

Yes, divorced from the bargaining table, in the normal course of the life of a union a disclaimer is recognized and effective. Had the players done this two years ago, it wouldn't be an issue. But there is no reasonable argument that can be made that this was done for anything other than a strategic bargaining purpose.FYI, they would not have been legally permitted to decertify two years ago. Under labor law, there are timeframes for when you can and cannot decertify. Obviously they're not going to disclaim the union at a time when they could not also vote to decertify.

Is there any other time at which you would have liked them to disclaim/decertify? And, by the way, if they waited until the date after the CBA expired, they would have been contractually bound to wait 6 months to file lawsuit. Seems to me there was a limited window in which they could disclaim/decertify and they attempted to collectively bargain in that window, but when they felt the bargaining collapsed, they chose to decertify/disclaim.

The decertification/disclaimer was done in order to protect against and preserve legal rights. If you do not believe that protecting your legal rights is a reasonable justification for taking a particular action, then I'm afraid I disagree with your assessment of what is reasonable. It is entirely possible that the players could decertify/disclaim, negotiate a settlement to the lawsuit, continue to player football and never recertify again. That is entirely possible. The fact that the decertification/disclaimer increased their bargaining power is obvious, but not dispositive.

[dogberry]

Does a negotiated settlement without a recertification protect the NFL from anti-trust lawsuits?

[jterrell]

FYI, they would not have been legally permitted to decertify two years ago. Under labor law, there are timeframes for when you can and cannot decertify. Obviously they're not going to disclaim the union at a time when they could not also vote to decertify.

Is there any other time at which you would have liked them to disclaim/decertify? And, by the way, if they waited until the date after the CBA expired, they would have been contractually bound to wait 6 months to file lawsuit. Seems to me there was a limited window in which they could disclaim/decertify and they attempted to collectively bargain in that window, but when they felt the bargaining collapsed, they chose to decertify/disclaim.

The decertification/disclaimer was done in order to protect against and preserve legal rights. If you do not believe that protecting your legal rights is a reasonable justification for taking a particular action, then I'm afraid I disagree with your assessment of what is reasonable. It is entirely possible that the players could decertify/disclaim, negotiate a settlement to the lawsuit, continue to player football and never recertify again. That is entirely possible. The fact that the decertification/disclaimer increased their bargaining power is obvious, but not dispositive.

I would not bother arguing with cobra about this anymore.
We are months into this deal and people still don't accept or care to acknowledge that the NFLPA had to de-certify, accept the best offer the NFL would give them or guarantee to miss games and pay checks with a lock out.

Anyone arguing there should not have been a de-certification but saying a Lock Out is ok is just not worth discussing this worth any longer.

You can not have intelligent conversation where people refuse to accept he obvious rational parameters for such a conversation.

I get it because you'd have just as hard a time telling me the Eagles are a good team. If people don't care to be rational on a subject it is pointless to discuss it with them.

[Outlaw Heroes]

Does a negotiated settlement without a recertification protect the NFL from anti-trust lawsuits?

No...

[peplaw06]

No...IIRC it's the collective bargaining aspect that provides the anti-trust exemption and not the certification of a union. Both sides have operated with a CBA when there was no NFLPA, so I think they can do it. But I could be wrong.

[theogt]

IIRC it's the collective bargaining aspect that provides the anti-trust exemption and not the certification of a union. Both sides have operated with a CBA when there was no NFLPA, so I think they can do it. But I could be wrong.Right. It's a non-statutory exemption, so there's nothing concrete about what must be in place. The fact that a negotiated agreement between the owners and a players association (not a union) are in place would almost certainly be sufficient, though obviously the owners would prefer the added comfort of having a certified union in place.

[Outlaw Heroes]

Right. It's a non-statutory exemption, so there's nothing concrete about what must be in place. The fact that a negotiated agreement between the owners and a players association (not a union) are in place would almost certainly be sufficient, though obviously the owners would prefer the added comfort of having a certified union in place.

I disagree. A negotiated settlement without a CBA would be an agreement with individual players, and therefore not collectively bargained.

[Outlaw Heroes]

IIRC it's the collective bargaining aspect that provides the anti-trust exemption and not the certification of a union. Both sides have operated with a CBA when there was no NFLPA, so I think they can do it. But I could be wrong.

You're correct that the key issue is whether the agreement is collectively bargained. But the period from 1989-92 was a period in which the NFL operated without a CBA, which is what permitted the lawsuit to be maintained.

[peplaw06]

I disagree. A negotiated settlement without a CBA would be an agreement with individual players, and therefore not collectively bargained.I think you're wrong. The certification process isn't something that happens overnight. Pretty sure the new "trade association" has the power to bargain on behalf of the players collectively.

[Outlaw Heroes]

I think you're wrong. The certification process isn't something that happens overnight. Pretty sure the new "trade association" has the power to bargain on behalf of the players collectively.

I'm fairly certain that this is incorrect and that this is why the owners required the union to reform in 1993 in order to embody the terms of the SSA in a CBA.

[theogt]

I disagree. A negotiated settlement without a CBA would be an agreement with individual players, and therefore not collectively bargained.A CBA would be in place. But a union would not be party to the CBA. I'm not aware of any authority that requires a certified union be in place for the labor exemption to apply. As long as an agreement is collectively bargained, it is sufficient. There's a three part test, I forget what it's called.

[Hostile]

Collective bargaining is a process of negotiation between a Union and management. That is why it is protected under the NLRA and NLRB.

For there to be a CBA the owners need the players to recertify their Union, otherwise they are not protected from litigation. When the NFL vs. Reggie White was the prime litigation strategy the Union recertified to complete the CBA and by doing so the owners gave the players a much broader Free Agency system than they had ever had before.

That was the give and take to get the CBA and avoid litigation. The owners will demand that the players recertify for their own protection.

[cobra]

I would not bother arguing with cobra about this anymore....

Anyone arguing there should not have been a de-certification but saying a Lock Out is ok is just not worth discussing this worth any longer.

You can not have intelligent conversation where people refuse to accept he obvious rational parameters for such a conversation.

Well screw you too, buddy.

Luckily, I never said "de-certification" was bad or that lock out is ok. I only gave my opinion on the likely result of the issue before the Eighth Circuit. And I said that while I understand the reasoning behind the "de-certification", I said I think it was tactically unwise from the players' legal perspective (as opposed to financial) unless a prompt negotiated settlement could be reached. As a fan, I like it because I think it was the type of move that likely forced a quicker settlement and avoided an even more protracted fight. But my personal selfish reasoning is not what I was discussing. I was discussing my legal view on what the end game is. And I think the only upside to "de-certification" (I will note that you calling it "de-certification" is an interesting choice by you given the issue that I was discussing) was it provided a limited window of leverage to negotiate the settlement. It was a tactic, but if you do something tactical, you have to hope that you can achieve the result [By way of example, I once got a injunction restraining the transfer of hundreds of millions of dollars. I knew I could not hold on to the injunction before I filed it, but I used the window to go to the bargaining table. I couldn't get that and then be unreasonable in negotiation because if the injunction was dissolved, I would then be in an even weaker negotiating standpoint. And that's my point with this move.]

So, in other words, go pound sand for misunderstanding what I was saying and then claiming intelligent conversation is not possible with me.

[Plumfool]

The NFL has filed its "motion to dismiss" the Brady vs. the NFL antitrust case with the district court in Minnesota.

NFL to district court: "Defendants hereby move the Court pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order ..."

(cont): "... dismissing the Brady and Eller plaintiffs’ Amended Complaints (Doc. Nos. 73 & 119) for failure to state a claim upon ..."
web • 6/6/11 5:25 PM

(NFL cont) "... which relief can be granted (in whole or in part), or, in the alternative, for an order dismissing or staying the cases ..."

(NFL cont): "... under the doctrine of primary jurisdiction." END
web • 6/6/11 5:26 PM

[Outlaw Heroes]

I note that the players own brief acknowledges, at p. 58, that the players must be represented by a union (and a mere trade union will not suffice) for the non-statutory labor exemption to apply:

When employees are not represented by a union, however, there is no conceivable conflict between labor law and the Sherman Act because the labor-law provisions governing collective bargaining do not apply. Faced with no conflict, a court must enforce the antitrust laws as writ-ten. See, e.g., McNeil v.NFL, 764 F. Supp. 1351, 1358 (D. Minn. 1991); NBA v. Williams, 857 F. Supp. 1069, 1078 (S.D.N.Y. 1994),aff’d, 45F.3d 684 (2d Cir. 1995).

[Hostile]

I note that the players own brief acknowledges, at p. 58, that the players must be represented by a union (and a mere trade union will not suffice) for the non-statutory labor exemption to apply:
:grin:

[theogt]

I note that the players own brief acknowledges, at p. 58, that the players must be represented by a union (and a mere trade union will not suffice) for the non-statutory labor exemption to apply:Boy, that cuts both ways doesn't it? If there's no labor union and no collective bargaining occurring, how can it possibly be that the labor laws still apply? Do the owners really want to make that claim now? Or is it simply that the labor laws apply when they want them to and not when they don't?

[Outlaw Heroes]

Boy, that cuts both ways doesn't it? If there's no labor union and no collective bargaining occurring, how can it possibly be that the labor laws still apply? Do the owners really want to make that claim now?

The owners not only want to, but are in fact making that claim, for two reasons: 1. because in their view the union disclaimer is a sham (such that the non-statutory labor exemption continues to apply); and 2. because, even if one accepts that there is no union, the owners argue that the current dispute "grows out of a labor dispute".

[Hostile]

Boy, that cuts both ways doesn't it? If there's no labor union and no collective bargaining occurring, how can it possibly be that the labor laws still apply? Do the owners really want to make that claim now? Or is it simply that the labor laws apply when they want them to and not when they don't?The players are making that claim, not the owners. That is why they decertified, so they could sue for anti-trust. They are the side who want laws to apply when they want them to and not apply when they don't.

[theogt]

The owners not only want to, but are in fact making that claim, for two reasons: 1. because in their view the union disclaimer is a shame (such that the non-statutory labor exemption continues to apply); and 2. because, even if one accepts that there is no union, the owners argue that the current dispute "grows out of a labor dispute".Ah, yes, they want their cake and eat it too. Unfortunately for them, the law doesn't work that way.

[theogt]

The players are making that claim, not the owners. That is why they decertified, so they could sue for anti-trust. They are the side who want laws to apply when they want them to and not apply when they don't.I'm trying to decide which you know less about -- the law or economics.

[Outlaw Heroes]

Ah, yes, they want their cake and eat it too. Unfortunately for them, the law doesn't work that way.

I think there's a very good chance the 8th Circuit will disagree with you, if it comes to that.

[Hostile]

I'm trying to decide which you know less about -- the law or economics.The Law, but at least I know more than you on both.

[theogt]

I think there's a very good chance the 8th Circuit will disagree with you, if it comes to that.1. Stop negotiating, disband the union, and remain under the umbrella of labor laws.

2. Negotiate a multi-year collective bargaining agreement on behalf of all players and not have labor laws apply to you.

Your views on this have become so twisted by your clear bias, I'm not sure it's even worth discussing anymore.

[Hostile]

1. Stop negotiating, disband the union, and remain under the umbrella of labor laws.

2. Negotiate a multi-year collective bargaining agreement on behalf of all players and not have labor laws apply to you.

Your views on this have become so twisted by your clear bias, I'm not sure it's even worth discussing anymore.Then please don't.

[theogt]

The Law, but at least I know more than you on both.I'd love to sit and explain both the law and economics more to you, but unfortunately I'm all out of crayons.

Cheers.

[Hostile]

I'd love to sit and explain both the law and economics more to you, but unfortunately I'm all out of crayons.

Cheers.I'm not at all surprised that you use crayons.

Cheers to you too.

[Outlaw Heroes]

1. Stop negotiating, disband the union, and remain under the umbrella of labor laws.

2. Negotiate a multi-year collective bargaining agreement on behalf of all players and not have labor laws apply to you.

Your views on this have become so twisted by your clear bias, I'm not sure it's even worth discussing anymore.

Not really a fair representation of the owners' arguments, let alone my own. But if your view is that it's not worth discussing anymore, so be it.

As for my "bias", I've never hidden the fact that I favor the owners in this dispute. I also happen to think they have the stronger legal arguments. Your "bias" runs in the other direction. I don't (and won't) held it against you. It is what it is.

[FuzzyLumpkins]

Boy, that cuts both ways doesn't it? If there's no labor union and no collective bargaining occurring, how can it possibly be that the labor laws still apply? Do the owners really want to make that claim now? Or is it simply that the labor laws apply when they want them to and not when they don't?

They argue both sides continuously. Timing matters regarding labor laws but not antitrust laws. The clear intent of NL is to keep the courts out of labor disputes versus you cannot read into the intent of the law and only go by what stated.

I read their briefs and it seems like they try and defend every approach and spread themselves thin on all fronts. Then the vague outlines just asking for justices to fill in the blanks.

[MarionBarberThe4th]

I appreciate the time the big city lawyer types are putting in on this.

[Sam I Am]

Rinse, insult, and Repeat.

These threads are pointless after the announcement of whatever news broke.