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Wrapping up class action continues to be a potential impediment

James Quinn and Jeffrey Kessler, attorneys for the NFL Players Association enter a federal courthouse to resume court-ordered mediation in Minneapolis

James Quinn (L) and Jeffrey Kessler (R), attorneys for the NFL Players Association, enter a federal courthouse to resume court-ordered mediation regarding labor and revenue issues between the NFL and the NFL Players Association in Minneapolis, May 16, 2011. REUTERS/Eric Miller (UNITED STATES - Tags: SPORT FOOTBALL EMPLOYMENT BUSINESS)


Monday began with ESPN’s Chris Mortensen and Adam Schefter staking out the front spot on the first-to-report-an-end-to-the-lockout line, explaining that the NFL hopes to ratify a new labor deal on July 21 and that “many people” expect a deal to be completed by then. (And if it doesn’t happen, they can then say, “Hey, we never reported that it was definitely going to happen.”)

If it doesn’t happen, one potential reason for it could arise from the process of wrapping up the Tom Brady class action. Daniel Kaplan of SportsBusiness Journal reports that the players’ lawyers are pushing for the class to be certified, which means that Judge Susan Nelson would wave her legal wand and find that the players are bound together for the purposes of pursuing antitrust claims against the NFL. (Or she could find that the class isn’t suited for certification.) Kaplan explains that the strategy would be aimed at insulating the players from a future claim that decertification is a sham, if the players once again decide at some point to shut down the union and sue, when faced with a lockout.

But that’s an issue that would seem to be more easily addressed via the terms of the settlement, like it was in 1993. And if the players hope to completely foreclose the sham argument this time around, the Brady settlement should be far more clear in the timetable for shutting down the union and filing suit.

It could be that the players’ lawyers, led by Jeffrey Kessler and Jim Quinn (pictured), are using the certification process as leverage to get the league to agree to permit the players to pull the same maneuver in the future, with the use of language that makes it easier to decertify and sue before the expiration of the CBA. Or it could be that Kessler and Quinn are pushing certification since it would delay the process, making it more likely that the players will opt to permit Kessler and Quinn to pursue that $12 billion antitrust verdict, which can happen only if a full season is missed.

Regardless of whether the class is or isn’t certified, the Federal Rules of Civil Procedure plainly state that any resolution of a class action must be approved by the court, even if the class action is voluntarily dismissed. It’s believed that the union would first be resurrected before the settlement is presented to Judge Nelson for approval. Even then, however, current players would have a right to object to the settlement, even if none of them are inclined to exercise that right.

Then there’s the revised Carl Eller class action. Even though the retired players seem to have no legal standing to prevent the NFL and the current players from working out a new labor deal, Judge Nelson can’t simply disregard the Eller lawsuit simply because it is slowing down the return of football.

And while much of the Eller lawsuit borders on the frivolous (sorry, Jeff Nixon, but it’s true), the contention that a decertified NFLPA is behaving as a labor union -- and that the NFL is collectively bargaining with a trade association -- could be problematic, if anyone with actual standing to challenge this thing actually challenges it.

Most simply assume that, once the more challenging task of getting the league and the NFLPA* to agree on a revenue split, a rookie wage scale, and the terms of free agency, everything else will fall into place. In the end, it may not be as easy as it looks.