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Two-Minute Warning

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As the NFL's collective bargaining agreement steams towards expiration just before midnight on March 3rd, it is worth examining the strategy behind the NFLPA's plan to decertify, the NFL's likely response, and the implications for labor relations in the NFL for the next decade or more.

DECERTIFICATION

There will not be a new collective bargaining agreement on March 3rd. The NFLPA will decertify as the exclusive collective bargaining representative for NFL players before the CBA expires. Media reports that decertification will prevent the NFL from locking out players are inaccurate. Once the NFLPA decertifies, the term lockout will no longer apply. In any event, decertification will not prevent the NFL from ceasing football operations.

Decertification will strip the NFL of the antitrust exemption that protects work rules that would violate antitrust laws without a collective bargaining agreement and a collective bargaining relationship between the NFL and the NFLPA. Decertification will enable individual players to commence lawsuits challenging under the antitrust laws allegedly anticompetitive agreements among owners. These lawsuits will begin by asking a judge to issue an injunction alleging that the 32 teams' decision to cease football operations is an anticompetitive agreement that restrains competition for the services of NFL players. If a judge enjoins the NFL owners from enforcing their agreement to prevent players from going to work, players may gain substantial leverage in the labor dispute.

To obtain an injunction, players must show that (1) the "lockout" will cause irreparable injury, (2) the losses suffered from a "lockout" cannot be compensated with monetary damages, (3) the hardship of a "lockout" will be greater on players than NFL owners, (4) there is a substantial likelihood that players will prevail on the underlying antitrust lawsuit and (5) the public interest requires the court to enjoin the "lockout." The future of NFL labor relations hinges on which party prevails in the battle over an injunction.

THE BATTLE OVER AN INJUNCTION

The NFL will argue that an injunction is not appropriate because (1) monetary damages can compensate players for any losses suffered from a ceasing football operations (2) the damage from ceasing football operations will harm the NFL and its players proportionately, (3) when football operations cease, no work rules will exist that can be challenged as antitrust violations, and (4) it is in the public interest to uphold the longstanding public policy against courts intervening in labor disputes -- regardless of the popularity of the business in which the labor dispute exists.

A sixth factor, whether decertification is a litigation tactic designed to gain an advantage in a unique labor dispute, will consume courts and may be more important than consideration of the traditional factors regarding the issuance of an injunction. The antitrust exemption and labor law precedent are all designed to encourage labor and management to resolve labor disputes without the advantage or leverage that court intervention may provide to one side over the other. The NFL has already attacked the NFLPA's anticipated decertification as a litigation tactic designed to use the courts to gain an advantage in a private labor dispute.

Decertification was unprecedented when the NFLPA decertified during the 1987-1993 labor dispute. The NFL will argue that the fact that the NFLPA revived itself in 1993 as the collective bargaining representative for players is compelling evidence that the current decertification is not an abrogation of the NFLPA's collective bargaining role, but rather a tactic designed to advance the NFLPA's continuing collective bargaining objectives. The NFL will argue that the antitrust exemption should continue to apply because facts and precedent establish that, notwithstanding the NFLPA's decertification, the collective bargaining relationship between the NFL and its players endures and ceasing football operations is a form of economic coercion specifically permitted under labor law. The NFL will rely on history and longstanding labor law policy to argue that judges should not place their thumbs on the scales of justice and tip the balance in the NFL's labor dispute.

Regardless of a District Court's initial decision regarding an injunction, the party that loses will appeal. If the NFLPA wins an injunction, the NFL will ask the court to stay an injunction until an appeal is exhausted through the Supreme Court. While it is possible that a Circuit Court and the Supreme Court will allow for an expedited appeal of any decision regarding an injunction, courts' general reluctance to intervene in labor disputes will factor into the decision of whether an appeal should be fast tracked.

If NFL players succeed in enjoining a "lockout," they will be allowed to play and be paid during the 2011 season. The NFL will be forced to, as an NFL representative recently told me, "repeat the mistake" of the 1987 labor dispute by allowing players to play and collect game checks while simultaneously challenging the rules under which they will be playing. In addition to exposing the NFL to treble damages for any antitrust violation, lawsuits will enable NFL players to compel the NFL to provide in discovery the financial information regarding each NFL team that players failed to obtain in collective bargaining. If players win the battle over an injunction, they will gain substantial leverage to negotiate a new collective bargaining agreement through settlement of their antitrust claims.

Ceasing football operations imposes maximum pressure on players once they actually begin to miss paychecks in September. If the NFL is able to sustain a "lockout" into the regular season, then the antitrust threat loses its teeth because the NFL will not allow players to return to work unless the players drop their antitrust claims as a part of the new collective bargaining agreement substantially favorable to the NFL.

Either way, the battle over the injunction will have a profound effect on labor relations in the NFL for the next 15-20 years.

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