Posted by Will Brinson
The NFL made a news splash Saturday when it announced the hiring of two high-powered lawyers to represent the league in the antitrust suit filed by the no-longer-unionized players.
But the league's long-time outside council, Gregg Levy, also made some noise over the weekend calling, as we predicted yesterday, the NFLPA's decertification "a sham."
"The union only pretended to decertify in 1990," Levy said in a statement posted on NFLLabor.com. "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."
The "sham defense" is best explained by referencing another not-so-legalese term: the "duck defense." That's a reference to an old idiom -- "if it walks like a duck, and it talks like a duck, then it is a duck" -- because the NFL is going to attempt and claim that the union is, as Levy said, only decertifying in order to prevent the league from locking players out, and that it remains a union, despite the small technicality of not actually being a union.
Here's the thing: this point of contention is going to make or break the 2011 NFL season, not whatever PR directives the NFLPA and NFL will be rapid-firing over the next few months.
Because, as I mentioned on Friday night, the Minnesota District Court system is going to decide at some point whether or not the decertification was a sham.
The issue for the NFL is that in the CBA and the White v. NFL Settlement Agreement they "waive any rights" to claim decertification is "a sham, pretext, ineffective, requires additional steps, or in fact has not occurred" ... as long as said decertification occurs "after the expiration of the express term of the CBA."
As we all know, the union decertified before the CBA expired. The reason they did so is they were in a Catch-22, because the CBA language required the players, if they wanted to sue the league, to either do so before the CBA expired, or to wait until six months after the expiration of the CBA.
So the players could have avoided any issue with the "sham defense" at all by waiting to sue, but of course they couldn't sue until they decertified, and waiting six months to do would have coincided with the start of actual football.
Long story short is that the District Court could still decide that the union's decertification is not a sham, and lift the league's lockout, but the Levy makes a pretty compelling case as to why the court shouldn't.
Now the only question is whether or not it will be more compelling than what the players' attorneys offer up in opposition.
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