Skip navigation
Sign up to follow your favorites on all your devices.
Sign up

Making sense of the coming litigation storm


Now that the union has decertified, many of you are wondering what it all means and what will happen next. As one league source put it moments after the NFLPA went out of business, no one knows -- and anyone who says they know is lying.

For now, let’s at least try to make sense of what has happened, and what could occur in the future.

What is decertification?

“Decertification” refers to the union’s decision to cease operations as the collective bargaining representative of the players. The NFLPA has now become merely a trade association with no power to talk on behalf of the players. The players are now all non-union workers.

The term “disclaimer of interest” has been used by folks like NFL outside counsel Bob Batterman to characterize the move. NFLPA spokesman George Atallah tells PFT that, in the NFLPA’s opinion, decertification and “disclaimer of interest” mean the same thing.

Why did the union decertify?

The most immediate goal of decertification is to prevent a lockout, since the owners of 32 separate businesses can’t shut the doors on a non-union workforce without violating antitrust laws. The league fears that the union will move very quickly to prevent a lockout, possibly seeking (and possibly obtaining) an order forcing the NFL teams to continue to operate -- and thus to commence the new league year -- by 12:01 a.m. Saturday.

Will the NFL oppose decertification?

Presumably, yes. But the process could be complicated.

Last month, the league filed an unfair labor practices charge with the National Labor Relations Board, claiming that the union was simply going through the motions in the hopes of unleashing the decertification-and-litigation strategy. The NFL will surely try to get the NLRB to determine whether the decertification is a “sham” aimed merely at building leverage (which, frankly, it is), and the players will try to have that issue resolved by Judge David Doty.

As we pointed out earlier today, the Collective Bargaining Agreement contains language indicating that, under certain circumstances, the NFL will have waived the “sham” argument, making the union’s strategy far more likely to succeed.

When will the players try to block a lockout?

They could move quickly. Already, an antitrust lawsuit has been filed. The lawsuit possibly requests an immediate order preventing a lockout.

The specific dynamics and timetable of the litigation currently remain unknown. As we suggested last night, Judge David Doty could prevent a lockout while the litigation proceeds. The lockout also could be blocked while any appeals are pursued by the league or the NFLPA.

As we’ve reported, teams are bracing for the possibility that Judge Doty will issue an order as soon as tonight that a lockout may not occur, setting the stage for free agency to begin at 12:01 a.m. ET Saturday. At this point, no one knows what will happen.

What happens if the attempt to block a lockout fails?

If the NFL successfully prevents decertification or beats back a lawsuit aimed at stopping a lockout after decertification, the league would have the ability to shut down the sport as leverage against the players, in the hopes that the players eventually will decide to do a deal that allows them to get back on the field.

Make no mistake about it -- the NFL will try to implement a lockout. Preventing players from playing, and thus from getting paid, is the league’s ultimate leverage toward a favorable labor deal. Conversely, letting them play while antitrust litigation unfolds would essentially fund the lawsuit and allow the players to see the case through to a favorable outcome, maximizing their leverage every step of the way.

What happens if the lockout is blocked?

At that point, the league will have to decide on the rules to be applied in 2011. Any rules used will expose the league to antitrust liability based on the argument that 32 separate businesses can’t come together and agree to rules for “drafting” employees and holding them in place after their individual contracts expire, via RFA tenders or the franchise tag. Also, a salary cap would potential violate antitrust laws.

The lawsuit could linger for years, but football would also continue. That’s precisely what happened the last time the union decertified, after the 1987 strike. The league continued, the players sued, the players eventually won a preliminary judgment, and the two sides struck a deal that became the first Collective Bargaining Agreement to include real free agency rights and a salary cap.

Will there still be a draft?

The only thing we know at this point is that a draft will still occur, from April 28 though April 30. Even in a lockout, the 2011 draft will happen.

What does it all mean to the fans?

Most immediately, free agency won’t happen until a court order is entered blocking a lockout, or until a lockout is resolved via a new labor deal. To the extent that fans are rooting for an outcome, they should be rooting for the players’ strategy to succeed, quickly.

If it does, we’ll have a full offseason and football while the fight shifts to the courtroom.

All that said, don’t believe for a second that the NFLPA launched this strategy for the fans. It was the best move aimed at getting the best deal; the fact that it entails football continuing is coincidental. Nearly 25 years ago, the NFLPA decided that going on strike was in the players’ best interests. That time around, they surely didn’t pick a course of action that time aimed at helping the fans.

Frankly, no one really cares about the fans right now. They pretend they do, but they don’t. Each side wants to cut its best deal, and none of this is being done for our benefit.

If any other sport was even remotely interesting to me, I’d tell both sides to shove it right now and go find something else to cover. But those of us who love the sport have no choice but to wait. Eventually, plenty of us who love the sport could wake up one day and decide they don’t love it any more.