NFL, Players Face Off in Court

By MATTHEW FUTTERMAN

Nearly a month after negotiations for a new collective-bargaining agreement collapsed, lawyers for the NFL and the league's players association squared off in court Wednesday in a crucial hearing that will help determine whether there will be a 2011 season.
The hearing in front of U.S. District Court Judge Susan Richard Nelson in St. Paul, Minn., is the first major step in the case of Tom Brady vs. the National Football League that is being closely watched by both football fans and legal experts.

Sports Labor Disputes

Take a look back at some of the disputes that have upset play in major-league sports.

Players are seeking an injunction that would end the current lockout, while owners are trying to maintain the status quo in hopes of forcing the players to return to collective bargaining. Owners are hoping that by locking out the players and withholding pay, a critical mass of the rank-and-file will break with the leadership and push for a new deal that includes concessions.
During the initial arguments Wednesday morning Judge Nelson peppered lawyers for both sides with questions, but she was particularly hard on David Boies, who is representing the NFL. Mr. Boies acknowledged the awkwardness of his position—telling a federal judge she didn't have jurisdiction and should defer to the National Labor Relations Board. In response, Judge Nelson asked Mr. Boies if the NFL could lock out the players indefinitely while waiting for an NLRB decision that might take years—and how could she balance that with the harm the players were enduring by not being able to work? Jim Quinn, a lawyer for the players, noted there were no precedent cases similar to this one because, noting how odd it was for a business to challenge a union's decertification and impose a lockout, "no one would dare do what the NFL has done here."
The hearing was expected to last into Wednesday afternoon, and it remained unclear whether the judge would make a ruling. At one point, she suggested the solution shouldn't rest with her. "It's possible you could sit down and work out a plan," she said. Mr. Quinn said they had tried that and failed.
After nearly two years of talks and three weeks of federal mediation, discussions broke down on March 11. The NFL Players Association decided to decertify as a labor organization. The players had to decertify as a union for collective bargaining purposes in order to be able to seek relief in the courts under the antitrust laws. They sued the league for antitrust violations in federal court just hours before the collective-bargaining agreement expired.
Owners subsequently locked out the players. They have labeled the decertification an end-run around the collective-bargaining process and filed a complaint with the National Labor Relations Board attempting to block it. The NLRB has launched an investigation into the matter.
Under the previous agreement, players had been receiving 51% of revenue. Owners want to cut that. Projected revenue for 2011 is $9.4 billion.
Both sides were keeping quiet in the days leading up to the hearing. No talks have taken place since March 11, with lawyers for each side focusing on the initial decisions of a case that has turned labor law on its head.
"In the typical industry, employees fight to be part of a union and management fears the power of these unions," said Gabe Feldman, director of the sports law program at the Tulane University School of Law. "In this context, the employees are fighting to dissolve their union while management fears the absence of the union. Whatever Judge Nelson decides after the hearing on Wednesday will create the law in this area."

Despite extensive legal briefs, it's unclear whether Judge Nelson will rule from the bench or take additional time to decide.
For the players, the hearing marks a return to the venue where they have achieved most of their gains during the past two decades, including the right for players to sell their services to the highest bidder.
Owners, on the other hand, are trying to have the case dismissed as quickly as possible, arguing the two sides should settle their disputes through collective bargaining.
"Litigation is not going to solve this problem," NFL Commissioner Roger Goodell said recently. "The faster we can get back to mediation, the faster we will get an agreement and the fairer it will be."
The prospect of lengthy litigation is particularly precarious for the owners, since damages are triple if a trial determines owners violated antitrust laws.
However, Matthew Cantor, an antitrust lawyer with New York-based Constantine Cannon said the players' biggest obstacle to convincing Judge Nelson to lift the lockout may be proving that monetary damages won't fully compensate them for the supposedly irreparable harm they will endure.
"Even for the players who don't have contracts, it's pretty easy to calculate how much money they would lose," Mr. Cantor said.

Players-association officials have pointed out that NFL careers are notoriously short—less than four years on average—making any lost time potentially critical to a player's career.
The case is taking place in Minnesota because the federal courts there have overseen the NFL's labor cases since the late 1980s, when a group of players sued the league there to win the right to free agency. Those cases were ultimately settled in 1992 and 1993 when the league and the players association came up with a collective-bargaining agreement that provided players with a path to free agency but included a strict limit of how much each team could spend on player salaries.
The agreement was extended repeatedly, with minor adjustments. It remained a part of the settlement, though, and as a result, the U.S. District Court in Minnesota has continued to hear the subsequent NFL labor disputes. U.S. District Court Judge David Doty has usually heard the cases, and he has a consistent record of ruling in favor of the players.
In fact, the league has had such little success in court that a primary goal for them during the standoff is to remove federal judicial oversight from the labor process, a burden the other major sports leagues in the U.S. don't have to endure. Judge Doty recently delivered a blow to the owners when he ruled some $4 billion in broadcast revenue may have to be placed in escrow during the lockout because the league violated its obligation to seek the highest price for its media rights
Not every case ends up in front of Judge Doty, but the players association has no complaints that this one landed in Judge Nelson's court. "She's a very smart and fair-minded judge," Jeffrey Kessler, a longtime players-association lawyer said during a recent interview. "Judges like that are usually very good for the players."