Kickoff Week for the NFL Negotiations

09/12/2010 05:20 pm ET | Updated May 25, 2011

Just as the NFL teams take the field for the first week of the season, the labor struggles have begun in earnest. You might have missed the news that the members of the Super Bowl Champion New Orleans Saints unanimously voted last Monday to authorize the NFL Players Association to decertify. What is all this about?

The possible decertification of the Players Association is based on the relationship between national labor law and antitrust law. This is the most difficult topic I cover in my Sports Law course, but it will be critical to understanding the bargaining games over the coming year. While many fans have trouble believing that millionaire athletes are unionized, that is very old news. Players with careers averaging about four years find in a union the support they need to make sure they are treated fairly. Then why would the Saints -- and the members of all the other NFL teams to follow -- vote to allow their union to decertify?

Decertification would mean the union would cease to exist. That, believe it or not, may be a benefit to the players and to their prospects in collective bargaining. The collective bargaining agreement between the clubs and the union includes all kinds of provisions that limit economic competition between the clubs. For example, NFL teams are limited by the salary cap in what they can pay their employees, the players. They are limited in the number of employees they can hire, 53 during the regular season. They even share their revenues. Think of any other group of economic competitors pulling off the same trick. These "restraints of trade," as they are called in antitrust law, would be easy targets in an antitrust suit. While we are used to hearing about multi-million dollar multi-year contracts, in a truly free market these very special athletes might be able to command even higher salaries.

How then do the NFL teams get away with these antitrust violations? When the economic restraints are embodied in a collective bargaining agreement, they are insulated from antitrust liability under prevailing court precedent. Congress enacted both the antitrust laws and the labor laws, and the courts, in seeking to reconcile the two statutes, have said that labor law trumps antitrust law when the restraints are the product of free and open collective bargaining.

Why then is the NFL Players Association threatening to stop being a union? The Supreme Court has held that as long as the union exists, the antitrust immunity exists, even after expiration of the collective bargaining agreement. Apparently, the only way antitrust laws will apply to the NFL in its dealings with its players is if the union commits "suicide."

The union has used this strategy before. After the disastrous 1987 strike, the union decertified and players filed an antitrust suit. While the case was pending, the parties secretly negotiated a new collective bargaining agreement. (If the negotiations had been made public, then the union's decertification would have been revealed to be a sham. Both sides honored the secrecy pledge.) That ushered in decades of labor peace on the football field.

A genuine decertification of the Players Association accompanied by an antitrust suit would mean the end of the NFL as we know it. Thus, the risk to the NFL by the union's strategy is real. However, it is also a doomsday bomb. The union has to be willing to end its existence, and management must believe that could happen. Otherwise, the antitrust ploy is an empty threat.

The union insists that taking player votes now is simply for logistical reasons. It is easier to reach all the players during the season. The union need not act until March or even later when the owners make plain they intend to lock out the players to achieve their bargaining goals. Both sides are just preparing for the showdown that seems sure to come next year.