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Roger I. Abrams

Roger I. Abrams

Posted: March 21, 2011 03:57 PM

Enjoy the Basketball While You Can


For reasons I do not totally understand, after four days of wall-to-wall college basketball my NCAA brackets place me in the 96th percentile. While this is not quite in President Obama's league -- he is at 99.9th percentile -- it is a "personal best" -- at least so far. The games, for the most part, have been awesome, and there are two great weeks of hoops ahead.

The delight of the annual college basketball festival has almost made me forget the NFL lockout, now in a two-week hiatus before the federal judge in Minneapolis holds a hearing on the request of former members of the Union for an injunction. The April 6th hearing obviously will be important for the NFL and the new trade association of football players, but also it will be vital for sports law in general.

The court will have to decide in the first instance whether, in fact, the Union decertification was valid. As far as I can tell, this is what lawyers like to call "a case of first impression." Although the NFL Players Association decertified once before in 1989 and then was resurrected in 1993, a court never formally ruled on whether the Union's decertification was valid. In fact, in order to reach the new collective bargaining agreement back then, the trade association had to do some union-like things, like negotiate with the NFL owners.

Should the decertification be considered legally valid? There is no question the Union sought and obtained authorization from its members to terminate its status as the exclusive bargaining representative. That should be sufficient. The NFL will argue that this was just a ploy in order to give the Union more economic power at the bargaining table. That was true, but that bargaining power did not result in an agreement the Union found acceptable.

How can you tell when a union is no longer a union? In the first instance, it can no longer do union-like things. It can't be sucked back to the bargaining table because it has no legal power to represent the football players. Commissioner Goodell's letter to the players urging them to encourage their "union" to return to the table was, for the most part, met with disdain by the players. The former Union cannot process any grievances or behave like a labor organization. It took down its website, and it would likely do better having non-union folks represent the class of plaintiffs in Minneapolis.

If the plaintiffs -- Mr. Brady, et al. -- can establish their legal, non-union status, then I think the antitrust part of the case is fairly simple. A group of 32 employers cannot boycott a group of 2000 employees. That is a "contract, combination or conspiracy" in "restraint of trade," which violates the 1890 Sherman Act and the 1914 Clayton Act. Under prevailing precedent, the NFL's actions will be judged by the Rule of Reason, which would balance the anti-competitive effects of its actions against the pro-competitive justifications. Here, it is hard to identify any justifications assuming that collective bargaining has ended. The other requests made by the plaintiffs -- for an injunction against the salary cap, restricted free agency, the draft, etc. -- would likewise fall into the prohibited category.

However, I have not been able to figure out the trade association's next step when it wins. With the injunction in hand, how will the trade association be able to cash in at the bargaining table? Will there need to be player-by-player, individual negotiations? Will every rookie be a free agent? Lots of great legal issues will smack us right in the face, so stay tuned.

In the meanwhile, enjoy the basketball. Will Kansas win it all? I have Duke, but there are some great college basketball teams in the field. Please don't try to think about the fact that all this terrific entertainment is brought to you by young men who are paid in kind with college tuition, room, board and books, while their performances are now spread over four television networks to record-breaking ratings. Just enjoy the three-pointers and the dunks.