Tag:Lockout
Posted on: March 12, 2011 7:35 pm
Edited on: March 12, 2011 7:38 pm
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NFL lawyers on decertification: 'A sham'

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.

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed.
Posted on: March 12, 2011 7:35 pm
Edited on: March 12, 2011 7:38 pm
 

NFL lawyers on decertification: 'A sham'

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.

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed.
Posted on: March 12, 2011 4:15 pm
 

NFL hires big legal guns for antitrust battle

Posted by Will Brinson

A large contingent of NFL players filed suit against the NFL on Friday afternoon, and the NFL has responded by hiring a pair of pretty big legal guns -- David Boies and Paul Clement -- to represent them against the players in the antitrust case.

Clement was the 43rd Solicitor General for the United States from 2005 until 2008 and worked in the Solicitor General's office for seven years. In that time, he argued more than 50 (!) cases in front of the Supreme Court.

Boies represented this fella named Al Gore back in 2000, in a little case (Bush v. Gore) that involved some votes in Florida and had a little to do with who ended up being the 43rd President of the United States of America. That netted him Time's "Lawyer of the Year" award in 2000, as well a runner-up spot in their "Person of the Year" award that year.

Boies also recently scored a $1.3 billion verdict for Oracle, is in the middle of a Constitutional case on same-sex marriages and is on the team of attorneys that's representing Jamie McCourt (wife of Dodgers' owner Frank McCourt) in her divorce proceedings. In short, he's one of the most famous lawyers in the country.

Those two will join Gregg Levy, the NFL's primary outside counsel for over a decade, in representing the NFL against a slew of really famous players.

There is a strong chance you will be seeing their names on a large number of documents filed in Minnesota District Court over the coming months.

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed.
Posted on: March 12, 2011 3:43 pm
Edited on: March 12, 2011 3:45 pm
 

'Lockout Letter' from NFL to players made public

Posted by Will Brinson

You'll recall that some time during the blur of Friday evening, we posted the context of the letter from DeMaurice Smith to Roger Goodell that advised him of the union's decision to decertify (aka The "Dear Roger" letter).

Well, there's one from the NFL as well, in which Dennis Curran, Senior VP of Labor Litigation & Policy, advised Smith that the league would be locking out the players.

It's just like Smith's letter -- a piece of correspondence that's required to make things official. And it was posted on NFLLockout.com. The best part, though, is that it begins with "Dear De."
Dear De,

Please be advised that, assuming the National Football League ("NFL") and the National Football League Players Association ("Union") have not agreed upon terms for a collective bargaining agreement by 11:59 p.m. on March 11, 2011 (when the parties' current agreement expires), the NFL's member Clubs will institute a lockout of members of the Union's bargaining unit immediately thereafter.

In the event of a lockout, Clubs will be delivering letters to their players in the form attached hereto. Should you have any questions, please do not hesitate to contact me.

Sincerely yours,
Dennis Curran
So, yeah, nothing crazy about that, although it does kind of prove the point that a lockout was never really a "decision" that was made following the end of mediation. The NFL knew what route it was taking all along. What's much more interesting is the letter "form attached hereto" that the players were sent, presumably by some sort of certified mailing that likely left team offices today.

In lieu of going back to the blockquote machine (I suggest you click here for the first page and here for the second page), here's the main points:
  • Players aren't allowed at "any Club facility or the stadium" unless they're there for a "non-Club event or Club charitable event.
  • No paychecks
  • No health insurance (though the Club advises players about COBRA)
  • An odd clause stating that the players "aren't permitted to perform any services under your Player Contract," which apparently means they can't practice football or exercise. 
  • No steroid testing!
  • No talking with coaches
  • No agents at the facility either (same rules apply to them)
  • No information on how to exercise from the team
  • Injured players get some treatment from the team
  • No legal assistance from the club
  • Any "activities" that a player engages in during the lockout is done so at their own risk, and the team isn't liable in the event that someone becomes a professional cliffdiver or something
And, I think, that about covers it. The NFLPA's stance on this is pretty clear: the league was planning a lockout all along. And, thusly, never really negotiating in good faith with the players.

The NFL will inform everyone that this is "standard protocol" for such a procedure, and that it doesn't demonstrate their desire to keep the players from showing up at work in 2011. But even with a strong PR push regarding the players' decision to "walk away," it's a pretty sell to ask people to ignore that a lockout was almost always in the cards for the owners.

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed.
Posted on: March 12, 2011 12:42 am
Edited on: March 12, 2011 1:36 am
 

7 questions NFL fans should ask about the lockout

Posted by Will Brinson

First of all, the NFLPA no longer exists, as the union decertified on Friday afternoon. (I highly suggest you read this Q & A on what decertification means , too.) And as of Saturday, March 12, the NFL is locking the players out .

But what happens to football now that things are seemingly in utter chaos and the NFL has locked out the trade association formerly known as the NFLPA? 

Well, no one actually knows , because much of it hinges on legal decisions but we can take a gander at some possibilities in the old lucky No. 7 formation.

1. A lockout --  does that mean I get no NFL football in 2011? 

Well, not necessarily. The interesting thing about a full-on legal battle is that there's a decent chance all the "action" takes place in the courtroom. Which means there's a decent chance that actual NFL football gets played. Could much of the offseason be lost? Most definitely. And could part of the regular season be missed? Sure. In fact, the whole season could go unplayed, but there's just waaaaay too much money at stake (about $9 billion, in case you didn't hear) and way too many mortgages that need to be paid on stadiums and way too many paychecks that need to be cashed for the NFL simply not to exist in 2011.

NFL Labor
2. What happens next?

No, see, that's the thing. There's a lockout but there's not definitely one. Which sounds really stupid, but makes sense when you consider that the legal issue of a lockout -- whether the NFL can actually stop a non-union from coming to work -- won't get solved for a little while. As it stands now, the earliest we'll probably know whether a lockout is actually happening is probably Monday. But it could be anytime Saturday, only that would mean that someone employed by the government works on a weekend for the first time ever. (Hey-o!)

No, but seriously, judge Judge David Doty's first piece of work will be deciding whether or not the NFLPA (when it was a union) was within its legal rights to decertify. If he says yes, then the league won't be able to lock the players out and we'll move closer to a "normal" offseason. 

3. Wait, why wouldn't the NFLPA be able to decertify? I mean, they already did, didn't they?

Yes, they did. But the league is likely to try and block the decertification based on the logic that the NFLPA decertified before and then rejoined at a later date. In fact, the league will be regularly (and publicly) referring to it as a "sham" in the coming days. However, there's a certain portion of the lawsuit against the league that references a previous ruling by Minnesota court that "the NFL could not assert any claimed exemption to antitrust laws based on an allegation that the action by a majority of NFL players to renounce collective bargaining is somehow ineffective or a sham."

To put it more simply: the players got a "decertification insurance" the last time around, and they're going to be using it.

4. Can my team sign Nnamdi Asomugha (or anyone for that matter)? 

Not yet, because there's also not free agency. If the NFL had skipped the lockout and imposed the last set of rules on the players, the market would have been open and the result would have been utter and total insanity. Not to mention a lot of awkward negotiating (after all, these guys are suing each other). 

What probably happens on this end is that we get a ruling on whether or not decertification is legal, and then, somewhere down the line -- think 3-6 weeks, as is being reported by various outlets -- free agency starts. That's not terrible, because it means teams will get a decent head start on filling out rosters and making sure no really stupid money gets tossed about for free agents. Alternately, it might not start until August, and then it'll be kind of ugly to see what happens in a really short amount of time.

5. How about Peyton Manning -- can my team sign him?

No. Because Manning is currently "franchised" by the Indianapolis Colts. But there's an interesting part of the players' antitrust lawsuit dedicated to those tags, where the lawyers in charge point out that there's no logical reason for the franchise tag to survive any longer. Namely, that once the CBA expires, so does the franchise tag and that the NFL is just imposing the tag (along with the Transition Tag) because it wants to without any legal basis.

This is vastly more interesting now that the union no longer exists, because the argument from the players is that applying such a restriction is a violation of trade law. Oh, and yes, there ARE three named plaintiffs who happen to be designated as franchise players: Manning, Vincent Jackson and Logan Mankins.

Manning's probably not going to leave the Colts, but, needless to say, fans of Indy's franchise (and Indy management) probably don't want to see the franchise tag disappear quite yet. After all, these guys are tagged right now, but if that tag disappears, there's a decent chance they become unrestricted free agents. Just like free agency, it's TBD.

6. What about the draft -- is my team getting Cam Newton?

There's a clause in the lawsuit about that too! Go figure, right?

And, in the player's suit, the draft is also called an "anticompetitive restriction." In the "real business world," this makes sense -- imagine if you were the top graduate from business school out of Harvard and, instead of deciding to work at the job that offered you the most money and best benefits and whatnot, you had to go work for whatever company finished with the worst profit margin the previous year? You'd be pretty angry. And we'd all work for Aol.



That's not to say there won't be a draft, but if the players are as unified in late April as they are now, they could always boycott the draft. And, in a total worst-case scenario, a ruling from Judge Doty could come whereby the draft IS considered an anticompetitive restriction and therefore no longer a legal method of "hiring."

The most important thing to remember about those two points, though, is that as the draft gets closer, there's a good chance the owners face an even tighter squeeze to make some sort of settlement happen and get ready to play football.

7. Will my favorite players just be working hard to get prepared for the upcoming season? Anything else I should know?

Well, yeah. About that. See, at midnight, the NFL's personal conduct policy and drug testing goes out the window. That means if someone wants to spend the evening chugging HGH out of a bong, they can't actually get in trouble with the NFL for it. (Johnny Law might disagree, but that doesn't matter for work purposes.)

And, as we've noted, agents are in the wild, wild west, too . That should mean lots of poaching and no union to regulate whether these guys are paying off college athletes. So, yeah, a sleazier version of Lord of the Flies .

Much more devastating and serious is that there will be lots of coaches and employees who are also worked out and not getting paid. Fans care about football, as is their right. But we/they are still consumers -- many people are going to be losing their jobs because these two diametrically opposed sides feel compelled to play a high-stakes game of chicken in a very public arena.

------
And that, folks, is the key word here: leverage .

It's what this whole shebang is about and it's why we'll be dealing with a barrage of "we're winning but we're not in it to win, we just care about the fans!" public relations statements over the next few months. This thing will, in my humble and not legally legal opinion, still end in a settlement.

It'll come once things get really ugly in court and both sides are really happy with each other, but it will come. And we will (probably) have football in 2011. But it's not going to be a rough road getting there, so strap in. 

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed .

Posted on: March 12, 2011 12:42 am
Edited on: March 12, 2011 1:36 am
 

7 questions NFL fans should ask about the lockout

Posted by Will Brinson

First of all, the NFLPA no longer exists, as the union decertified on Friday afternoon. (I highly suggest you read this Q & A on what decertification means , too.) And as of Saturday, March 12, the NFL is locking the players out .

But what happens to football now that things are seemingly in utter chaos and the NFL has locked out the trade association formerly known as the NFLPA? 

Well, no one actually knows , because much of it hinges on legal decisions but we can take a gander at some possibilities in the old lucky No. 7 formation.

1. A lockout --  does that mean I get no NFL football in 2011? 

Well, not necessarily. The interesting thing about a full-on legal battle is that there's a decent chance all the "action" takes place in the courtroom. Which means there's a decent chance that actual NFL football gets played. Could much of the offseason be lost? Most definitely. And could part of the regular season be missed? Sure. In fact, the whole season could go unplayed, but there's just waaaaay too much money at stake (about $9 billion, in case you didn't hear) and way too many mortgages that need to be paid on stadiums and way too many paychecks that need to be cashed for the NFL simply not to exist in 2011.

NFL Labor
2. What happens next?

No, see, that's the thing. There's a lockout but there's not definitely one. Which sounds really stupid, but makes sense when you consider that the legal issue of a lockout -- whether the NFL can actually stop a non-union from coming to work -- won't get solved for a little while. As it stands now, the earliest we'll probably know whether a lockout is actually happening is probably Monday. But it could be anytime Saturday, only that would mean that someone employed by the government works on a weekend for the first time ever. (Hey-o!)

No, but seriously, judge Judge David Doty's first piece of work will be deciding whether or not the NFLPA (when it was a union) was within its legal rights to decertify. If he says yes, then the league won't be able to lock the players out and we'll move closer to a "normal" offseason. 

3. Wait, why wouldn't the NFLPA be able to decertify? I mean, they already did, didn't they?

Yes, they did. But the league is likely to try and block the decertification based on the logic that the NFLPA decertified before and then rejoined at a later date. In fact, the league will be regularly (and publicly) referring to it as a "sham" in the coming days. However, there's a certain portion of the lawsuit against the league that references a previous ruling by Minnesota court that "the NFL could not assert any claimed exemption to antitrust laws based on an allegation that the action by a majority of NFL players to renounce collective bargaining is somehow ineffective or a sham."

To put it more simply: the players got a "decertification insurance" the last time around, and they're going to be using it.

4. Can my team sign Nnamdi Asomugha (or anyone for that matter)? 

Not yet, because there's also not free agency. If the NFL had skipped the lockout and imposed the last set of rules on the players, the market would have been open and the result would have been utter and total insanity. Not to mention a lot of awkward negotiating (after all, these guys are suing each other). 

What probably happens on this end is that we get a ruling on whether or not decertification is legal, and then, somewhere down the line -- think 3-6 weeks, as is being reported by various outlets -- free agency starts. That's not terrible, because it means teams will get a decent head start on filling out rosters and making sure no really stupid money gets tossed about for free agents. Alternately, it might not start until August, and then it'll be kind of ugly to see what happens in a really short amount of time.

5. How about Peyton Manning -- can my team sign him?

No. Because Manning is currently "franchised" by the Indianapolis Colts. But there's an interesting part of the players' antitrust lawsuit dedicated to those tags, where the lawyers in charge point out that there's no logical reason for the franchise tag to survive any longer. Namely, that once the CBA expires, so does the franchise tag and that the NFL is just imposing the tag (along with the Transition Tag) because it wants to without any legal basis.

This is vastly more interesting now that the union no longer exists, because the argument from the players is that applying such a restriction is a violation of trade law. Oh, and yes, there ARE three named plaintiffs who happen to be designated as franchise players: Manning, Vincent Jackson and Logan Mankins.

Manning's probably not going to leave the Colts, but, needless to say, fans of Indy's franchise (and Indy management) probably don't want to see the franchise tag disappear quite yet. After all, these guys are tagged right now, but if that tag disappears, there's a decent chance they become unrestricted free agents. Just like free agency, it's TBD.

6. What about the draft -- is my team getting Cam Newton?

There's a clause in the lawsuit about that too! Go figure, right?

And, in the player's suit, the draft is also called an "anticompetitive restriction." In the "real business world," this makes sense -- imagine if you were the top graduate from business school out of Harvard and, instead of deciding to work at the job that offered you the most money and best benefits and whatnot, you had to go work for whatever company finished with the worst profit margin the previous year? You'd be pretty angry. And we'd all work for Aol.



That's not to say there won't be a draft, but if the players are as unified in late April as they are now, they could always boycott the draft. And, in a total worst-case scenario, a ruling from Judge Doty could come whereby the draft IS considered an anticompetitive restriction and therefore no longer a legal method of "hiring."

The most important thing to remember about those two points, though, is that as the draft gets closer, there's a good chance the owners face an even tighter squeeze to make some sort of settlement happen and get ready to play football.

7. Will my favorite players just be working hard to get prepared for the upcoming season? Anything else I should know?

Well, yeah. About that. See, at midnight, the NFL's personal conduct policy and drug testing goes out the window. That means if someone wants to spend the evening chugging HGH out of a bong, they can't actually get in trouble with the NFL for it. (Johnny Law might disagree, but that doesn't matter for work purposes.)

And, as we've noted, agents are in the wild, wild west, too . That should mean lots of poaching and no union to regulate whether these guys are paying off college athletes. So, yeah, a sleazier version of Lord of the Flies .

Much more devastating and serious is that there will be lots of coaches and employees who are also worked out and not getting paid. Fans care about football, as is their right. But we/they are still consumers -- many people are going to be losing their jobs because these two diametrically opposed sides feel compelled to play a high-stakes game of chicken in a very public arena.

------
And that, folks, is the key word here: leverage .

It's what this whole shebang is about and it's why we'll be dealing with a barrage of "we're winning but we're not in it to win, we just care about the fans!" public relations statements over the next few months. This thing will, in my humble and not legally legal opinion, still end in a settlement.

It'll come once things get really ugly in court and both sides are really happy with each other, but it will come. And we will (probably) have football in 2011. But it's not going to be a rough road getting there, so strap in. 

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed .

Posted on: March 11, 2011 11:33 pm
Edited on: March 12, 2011 2:23 pm
 

Owners officially lock out players

Posted by Andy Benoit

With the CBA expiring at 11:59:59 Friday night, it’s long been assumed that a lockout will commence at midnight. Indeed, when the clock struck midnight, the owners locked out the players.

This after the NFLPA went nuclear and decertified.

NFL Labor
It will now be up to the courts to decide what happens next. The courts must rule whether to allow the lockout or block it. They’ll almost certainly block it on the basis that it violates antitrust laws. The players already filed a lawsuit against the NFL on Friday in which nine players, including Tom Brady, Peyton Manning and Drew Brees, were named as plaintiffs.

If and when the lockout is blocked, the NFL will appeal to Judge David Doty of the 8th Circuit Court (if you’re not already as familiar with the name Doty as you are with the name Goodell, you will be soon). That’s where the litigation begins.

What this all means for free agency and offseason activity is still to be determined.

For more NFL news, rumors and analysis, follow @cbssportsnfl on Twitter and subscribe to our RSS Feed.
Category: NFL
Tags: Lockout, NFL, NFLPA
 
Posted on: March 11, 2011 9:52 pm
 

Report: NFL expected to announce lockout tonight

Posted by Andy Benoit

Hours after the NFLPA went nuclear and decertified, Gary Myers of New York Daily News reports that the NFL is expected to announce a lockout tonight. If that’s the case, it will be up to the courts to decide what happens next.

The prevention of players from playing is the NFL’s ultimate leverage. The players’ ultimate leverage is decertification, which they enacted earlier. The antitrust lawsuit filed by nine players Friday evening aims at preventing a lockout.

It’s possible, perhaps even likely, that the league’s lockout effort will be blocked by the courts. That’s when appeals will be filed.

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The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com