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League submits reply brief in Eighth Circuit appeal


On Thursday, the NFL submitted a final reply brief in support of the appeal of Judge Susan Nelson’s order lifting the lockout. The 38-page document, in which the party initiating the appeal customarily receives the last word in writing, responds in fairly concise manner to the arguments raised by players who filed an antitrust suit against the league on March 11.

With the Eighth Circuit already expressing that it has “serious doubts” regarding the ability of the federal courts to end an employer-imposed lockout and the players responding with a strong case for erasing those doubts, the NFL focused extensively on the plain language of the Norris-LaGuardia Act, which prohibits courts from issuing injunctions in labor disputes.

In the end, the question will turn on whether the judges agree with Judge Nelson and the players, who interpret the Norris-LaGuardia Act to not apply where, as here, a union has decertified. If the two judges who expressed “serious doubts” ultimately agree with the NFL, the lockout will remain in place.

On that point, it’ll be interesting to see whether the players point out at the hearing -- or in a supplemental written submission -- a portion of the recent comments from Dolphins owner Stephen Ross to Jarrett Bell of USA Today. “We negotiate with unions all the time, and there are issues there,” Ross said. “But they’re not the same types of issues. When you’re dealing with guys earning over $1 million a year -- the average salary is, what, $1.87 million? -- you’re not talking about the same kind of labor issues. Are these really labor issues? These are not labor issues.

If, as Ross contends, these are not “labor issues,” then perhaps this is not a “labor dispute” within the meaning of the Norris-LaGuardia Act, which would allow the lockout to be lifted by the federal courts. Though the league would quickly be able to rattle off seven reasons why the Dolphins owner’s words should be given no weight, the fact remains that, by sounding off while litigation is pending, Ross has invited the players to make his words an issue -- just as the NFL has done with things the players have said.

Given that the Tom Brady antitrust lawsuit will continue even if the Norris-LaGuardia Act prevents the lockout from being lifted, the NFL has focused on other arguments aimed at ultimately defeating the case and forcing the union to reconstitute. As to the question of whether the courts should defer to the NLRB’s assessment of whether the decertification of the NFLPA was a sham, the NFL focused on a point we’ve previously made regarding the dilemma the union faced on March 11. Though the expired CBA contains language preventing the NFL from arguing that decertification is a sham, the CBA contemplates that the sham defensive will be waived if decertification occurs after the CBA expires. Due to the presence of language forcing the players to wait six months to file an antitrust lawsuit if they fail to file before expiration of the CBA, the players had to decertify before expiration of the CBA -- and then hope that they would be able to tiptoe around the timing issue as it relates to the sham defense.

In their appellate brief, the players contend that the CBA blocks the NFL from arguing that decertification is a sham if the union decertifies on or after the expiration of the labor deal. The union thus contends that, by decertifying on the day the labor deal expired, the union decertified “on” expiration of the CBA.

Here’s the full language of the relevant CBA provision: “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 or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.”

Though the long, legalese-heavy sentence contains the “on or after” language, the initial portion of the sentence seems to make clear the requirement that, to avoid the sham defense, decertification must occur “after the expiration” of the CBA.

This doesn’t mean that decertification necessarily was a sham; instead, it means that the NFL will still be able to argue that it was a sham. Which means that the NFL could not only prevent a lifting of the lockout under the Norris-LaGuardia Act but also defeat the entire case, if the NLRB concludes that the decertification was indeed a sham.

Bottom line? There’s still plenty of uncertainty for both sides, which means that both sides should be taking advantage of the uncertainty to control their destiny via negotiation, rather than waiting for one side to win and one side to lose, which will result in a skewed deal that will do nothing to restore long-term labor peace.