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League claims decertification came too early to avoid “sham” defense


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.

And the NFL has now expressly said so.

“The union only pretended to decertify in 1990,” NFL outside counsel Gregg Levy said in a statement provided to PFT. “As history has confirmed, that purported decertification was a sham. In an effort to protect its ability to repeat the fraud a second time, the union tried in the White settlement to limit the NFL’s ability to challenge in an antitrust court any future attempt by the union to pull off a similar sham. But that limitation could have applied only if the purported decertification occurred after expiration of the Stipulation and Settlement Agreement. The union was in such a rush to get to court that it did not wait until SSA expiration. The league is therefore free to show that this ‘decertification’ is also a sham.”

Levy is referring to Article LVII, Section 3(b) of the 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.” (Emphasis added.)

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.

And it is a sham. Everyone knows it’s a sham. But if the league can’t argue in court that it’s a sham, it doesn’t matter. If the league can argue that it’s a sham, then the league will be in good position to avoid an injunction and maintain a lockout.

Of course, that’s bad news for the fans, because it means that a lockout will continue until a deal is reached at the bargaining table. With the players taking personally the treatment they’ve experienced of late, the players may be willing to cut off theirs noses to spite their faces, which means that the offseason could indeed be compromised if not completely forfeited.