Sunday, March 27th, 2011...10:08 pm

The NFL Lockout and You

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A lot has been said and written about the labor issues and the ensuing lockout in the NFL, but we feel it is still useful to highlight a few of the major issues.

  1. The NFL Players Association de-certified for the second time in its history.

De-certifying as a union was a bold negotiating strategy pursued by the NFL because it allows players to launch anti-trust lawsuits against the NFL for restricting the market flow of labor (the players themselves) with the draft, salary cap and other league rules. As you may know, 8 players led by Tom Brady and Peyton Manning filed a class-action antitrust lawsuit on March 11th, asking for an injunction to stop the lockout. If the Federal District Court judge agrees with the players, the lockout would end and free agency would continue under last year’s rule, with no salary cap. The hearing is scheduled for April 6 in Minneapolis.

From all reports, it seems the owners would trouble defending against anti-trust claims. In American Needle Inc. v. NFL, the Supreme Court rejected the NFL’s claim of immunity from anti-trust laws. (Interestingly, baseball maintains anti-trust immunity, stemming from several Supreme Court cases in the early 1900s. The court upheld this distinction in the now infamous Flood v. Kuhn decision, but despite the court’s ruling the MLB’s player’s union successively bargained for free agency soon after.) Still, it remains to be seen whether the court will grant the player’s request for injunctive relief.

The interesting thing about that lawsuit is that it was filed before the Collective Bargaining Agreement technically ran out. Federal antitrust regulations maintain that plaintiffs cannot be engaged in bargaining, so while that is unlikely to be a huge problem for the artists formerly known as the NFLPA, it is a consideration. Additionally, the player’s class-action suit is being funded solely by the NFLPA and their lawyers, which brings us to the next point.

  1. The NFL and its owners will attempt to prove that the union’s de-certification is a sham.

In a story that was lightly reported at the time, the owners filed a complaint with the National Labor Relations Board (NLRB) in February, accusing the NFLPA of not bargaining in good faith. They have since amended that complaint to include the player’s filing of their class-action suit.

[Note: Part of the reason the union had to de-certify was to take this issue outside the jurisdiction of the NLRB and get it into the Federal Courts. The players have historically done well in front of Judge David Doty, sitting in the Federal District of Minnesota. Why Minnesota you might ask? The short answer is because it was in the CBA that all disputes would enter federal court there. The long answer is I’m not really sure, but Judge Doty has been hearing cases stemming from the NFL’s labor disputes since the 1980s. In terms of a venue and jurisdiction, it seems like the NFL could be sued anywhere. The 8th Circuit seems like an odd choice, it’s not one of the more visible circuits, but I’d bet it began there because the NFLPA believed its judges would be favorable.  Personally, I think it should go to the 7th Circuit if only because I’d love to see how Posner and Easterbrook view the economics of the NFL. Yet I digress. ]

The owners will certainly point to the timing of the lawsuit; that the NFLPA apparently was not willing to come to an agreement, preferring to take the issues to court. They will also undoubtedly mention that the suit was planned and is being executed by lawyers employed by the NFLPA. However, most commentators seem to agree the owners won’t win on those grounds. I don’t know enough to predict with any accuracy, but I’d be shocked if the NLRB decides to get involved. They have certainly not shown any willingness to do so yet

  1. While the main point of contention is obviously money (how to split $9 billion in revenue), there are many more issues on the table in this labor dispute.

Among the issues needing to be resolved: a potential extension of the regular season from 16 to 18 games, an increase in health benefits to retired players, the presumed re-introduction of a salary cap (remember, 2010 was an uncapped year) and a rookie wage scale similar to the NBA. (By the way, if you think the NFL labor dispute is complex, wait until we get to the NBA lockout next summer.)

Of course there are more than just these three issues going on, but we are already bordering on 800 words, so it’s probably a good time to stop for the day. For a much more thorough look at the legal issues on the table, read Lester Munson’s summary on

The author, Samuel Mann, can be reached at

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