THE BLOG
03/21/2011 10:20 am ET Updated May 25, 2011

Apparently the NFL Loves To Negotiate, But Definitely Hates Going to Court

The latest twist in the NFL tug of war between the owners and players is a bit amusing in its irony. Commish Goodell, Patriot owner Kraft and a Packer Prez Mark Murphy have all recently gone public about how they want to negotiate their little hearts out with the players union. However, those meanie players want to wait and see what happens in court April 6th.

The irony is that the owners only made a remotely legit proposal and it's probably more remote than legit at the last second in the most recent negotiations. This was after the players felt quite jerked around by the owners from a mixture of insults, bad faith bargaining in the form of TV negotiations, and up until the end, no real give on the biggest issue: money.

The history of player-ownerlabor negotiations in sports is quite clear. The owners have the most leverage unless the matters go to court. The batting average for owners in sports CBA contract negotiations in court is something like .050. That is a fairly arbitrary number, but the gist of it is on the money. This is why the NFL big whigs are so hot to negotiate because face to face negotiations is their wheelhouse whereas the courts is their Armageddon.

My apologies to football fans for using baseball analogies regarding football matters, but the football analogies just aren't as good. For example instead of batting average we could say pass completion average or possibly first down conversions. So if you prefer the owners pass completion percentage is like .05 and the first down conversion works out to about 1 out of 100 attempts. It isn't just Judge Doty the NFL heavies hate; it's the whole idea of going to court regarding matters of what is legal and fair to the players. When they go there legal and fair usually wins and the owners usually lose.

Given that their only remotely genuine offer came at the very last minute, is strongly evidenced that the owners wanted to test the back bone of the NFLPA. They wanted to be sure that the union would not crumble under pressure from angry fans that need their NFL fix or go into detox mode. There is a big problem with this not so brilliant strategy. That is in defending themselves the NFLPA has no middle ground defense only the nuclear option defense or if you prefer an 11 man blitz.

A recent detail that I found unearthed by Mike Florio of Profootballtalk.com both sheds some light on the situation but also adds to the confusion:

The fact that the NFL has locked out a supposedly non-union work force implies that the league believes the union has not properly and effectively decertified.

This is based on Article LVII, Section 3(b) of the NFL CBA, which states as follows:

The Parties agree that, after 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 and its Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns waive any rights they may have to assert any antitrust labor exemption defense based upon any claim that the termination by the NFLPA of its status as a collective bargaining representative is Article LVII, Mutual Reservation of Rights: Labor Exemption or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred

The problem for the players is that Article LVII, Section 3(a) of the CBA required them to wait six months before filing an antitrust lawsuit if they failed to file it before the expiration of the labor deal. So they've opted, apparently, to file the lawsuit in accordance with the terms of the CBA and hope that they can cobble together an argument that will allow the waiver of the "sham" defense to still apply.

The league's position is pretty simple. By failing to wait until the CBA expired to decertify, the plain terms of the agreement preserves the league's ability to argue that the process of shutting down the union is a sham.

Before the union decertified and prior to the expiration of the CBA, the NFL filed an unfair labor practice against the NFLPA on 2/14/11, alleging surface bargaining. Therefore, CBA Art. LVII Section 3(b) is most likely inapplicable, and the NLRB must settle this claim.

So technically, it would appear the timing of the union's decertification is not legally binding enough to stop a lockout. The question then must be asked if that is true, then why is NFL so anxious to get back to the bargaining table. Given that the heart of this suit is the NFL claiming bad faith bargaining against the NFLPA. Perhaps the NFL honchos are afraid the judge will use this suit to not just determine the legal ramifications of the NFLPA'S recent decertification but more so to determine the big picture so far of which side has crossed the line more than the other in regards to not bargaining in good faith. It seems to me that this issue is much weightier than whether the technicality of whether the union decertified too earlier to make a lockout by the owners illegal. The owners could win the battle but lose the war. I believe the evidence that the owners have not bargained in good faith is pretty strong. Judge Doty has already declared their negotiations for TV contracts which included 4.6 billion to be paid to the NFL even if there were no games played to be very bad faith bargaining by the NFL. On top of that, during negotiations the players made an offer to take split 50/50 on all income generated. The numbers show that in 2011 the players would make less money. The NFL countered with a proposal that left back door means for them to make a lot more money then they do now. It is well known that the players want to keep the status quo and the owners want to gain back much of the profits that they willingly negotiated away in the past.
That brings us back to the problem owners of professional sport teams have with going to court against sport unions. Facts and legal stuff usually get in the way of their desire to make more than their fair share of money off the backs of the players.

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