MINNEAPOLIS — The NFL lockout is about to head to court.
With the lockout at three weeks and no end in sight, attorneys for the NFL and its locked-out players will go before a federal judge on Wednesday in the first round of their fight over the future of the $9 billion business — including the 2011 season.
The players — with stars like Tom Brady, Peyton Manning and Drew Brees among the plaintiffs and retirees and yet-to-play rookies joining them in support — are asking for an immediate end to the lockout on the basis of “irreparable harm” to their careers. The injunction request accompanies the antitrust lawsuit filed against the league after labor talks broke down on March 11.
The league says it has the right to keep players from working and says the court must wait until the National Labor Relations Board rules on its claim that the players didn’t negotiate in good faith.
The fight is complicated and perhaps uninteresting to the average football plan in early April when the scheduled start of the season is still five months away. But the fate of everyone’s favorite team hangs in the balance.
“Even though football is enjoying this unprecedented popularity … nothing is invulnerable,” said David Allen Larson, a professor of labor and employment law at Hamline University School of Law in St. Paul, Minn., where U.S. District Judge Susan Richard Nelson will hold the hearing.
The first work stoppage in the NFL since the 1987 strike — and the first in any major U.S sports league since the NHL’s lost 2004-05 season — has developed into one of the all-time nasty disputes in sports. The players balked at more financial concessions when the owners wouldn’t open their books, and the owners insist the decertification of the union is a sham cooked up only to apply le verage in the fight.
Now, they don’t even agree on which laws apply to the case, with the owners arguing for labor law and the players preferring antitrust rules.
Nelson isn’t likely to rule on the injunction request Wednesday. She could side with the players and grant the injunction, putting pro football back in business. Or she could side with the owners and either deny the injunction or wait to decide until the NLRB rules on the league’s contention that decertification was an improper bargaining ploy.
The winner would have fresh leverage whenever talks on a new collective bargaining agreement resume. Of course, whatever Nelson decides will almost surely be appealed.
Confused? Just wait. It could become even more complicated if Nelson lifts the lockout, which wouldn’t be as simple as it might sound. How then to handle free agency could be a major contention, as far as which players are eligible and whether a salary cap would be in place.
This is one of the league’s arguments against the injunction, claiming the uncertainty of putting football back in place without a labor pact would have a “detrimental effect” on the league’s competitive balance.
That scenario would be “difficult, if not impossible, to unscramble the egg and return those players” to their original teams if the NFL were to ultimately win this case, league attorneys wrote in a court filing. League spokesman Greg Aiello declined further comment.
The league has accused the players of a “heads I win, tails you lose” tack that wants antitrust scrutiny to apply whether there’s a lockout or not.
“Many observers believe that antitrust laws do a really crappy and imperfect job of dealing with sports and therefore the solution is to force these parties to collectively bargain together,” said Stephen Ross, director of the Penn State Institute for Sports Law, Policy and Research. “If you believe that, then you are going to think the decertification isn’t really legitimate.”
Jeffrey Kessler, a lead attorney for the players, represented them two decades ago when they decertified after the failed strike in 1987, went to court and eventually settled with the owners with the just-expired CBA that created modern free agency.
“It was not a sham then, and it is not a sham now,” Kessler said. “The players have given up valuable things in a union.”
Jonathan Rubin, a Washington trial attorney and antitrust expert, said he sees an “uphill battle” for the players in court.
“Because they could be prevented from shopping for the legal framework, whether that’s antitrust law or labor law. The federal court might decide that this is not within the power of private parties to determine by contract, which is the implicit thing the players are asking for,” said Rubin, a former partner of DeMaurice Smith, the head of the NFL Players Association before it dissolv ed. “It’s a very tricky case, because there’s very little precedent to go on.”
Rick Karcher, director of the Florida Coastal School of Law’s Center for Law and Sports, disagreed.
“There’s nothing in the labor laws or by court precedent anywhere that says the labor force in a workplace has to be a certified union,” Karcher said. “That’s dangerous precedent, and I don’t think any court would order such a thing. That’s why I think the union has a stronger case.”
Ross added: “Sports fans right now should be rooting for the players. If the judge grants the injunction the league will not be able to lock out the players, and they’ll go back to the bargaining table” to talk about a deal.
Ah, a deal. That’s what fans are wishing for.
“Ultimately both parties are better off sticking to the business of football,” Rubin said, “and both parties know that somewhere deep down and they’re going to have to get to a point where there’s diminishing returns to continuing litigation.”
Associated Press Writer Amy Forliti contributed to this report.