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Rohirrim
03-02-2011, 08:20 AM
If this ruling stands, it takes away the nest egg the owners had created to get them through a lock-out. Let's see how long they last when the money starts drying up.
http://www.huffingtonpost.com/2011/03/02/nfl-union-tv-dispute-federal-judge_n_830154.html

Drunk Monkey
03-02-2011, 08:41 AM
So 42% of Direct TV's TV rights are non refundable. I bet that is a big reason they gave them the exclusive deal on non regional games again. I hope this blows up in the owners face.

TheReverend
03-02-2011, 08:44 AM
Can't the owners just continue appealing the ruling through Sept anyways?

gyldenlove
03-02-2011, 08:48 AM
Can't the owners just continue appealing the ruling through Sept anyways?

They can, but the financial risk of an eventual loss could be pretty substantial, in terms of paying back the money with interest, paying damages to the players, if all this happens with no football being played they could be facing some huge bills in top of their normal debt payments.

lostknight
03-02-2011, 09:10 AM
This will almost certainly make a lockout inevitable. Until now, the players had no reason to think they could ruin the owners via a long work-stoppage. Now they do have that leverage.

There is a big legal problem that will be exposed with Doty's work as soon as it is out of the most labor-friendly court in the nation. Simply put, he is acting as if the 2011/2012 and 2013 seasons are governed by a CBA that expired in 2010. He makes the hypothetical argument that the NFL might have retroactively gotten more money in 2010 if they hadn't taken lockout insurance. But the language in the contract is specific - the CBA requires that the NFL maximize the players profit on a season to season basis, not some hypothetical future date.

Doty also slams the NFL for not asking more for digital rights, and links it to the lock-out provisions. I think that's a classic old media view. In reality, digital rights are pretty much mandatory at this point, to incentivize old media viewings.



I don't think that particular line of thought will work on appeal.

lostknight
03-02-2011, 09:11 AM
They can, but the financial risk of an eventual loss could be pretty substantial, in terms of paying back the money with interest, paying damages to the players, if all this happens with no football being played they could be facing some huge bills in top of their normal debt payments.

We know what that additional protection was worth - the NFL granted television rights to a single additional late game to CBS in 2014. That's a baseline.

HooptyHoops
03-02-2011, 09:20 AM
Well, I don't know what to make of all this, but I'm hoping this gets a deal done sooner, rather than later.

BroncoMan4ever
03-02-2011, 09:27 AM
If this ruling stands, it takes away the nest egg the owners had created to get them through a lock-out. Let's see how long they last when the money starts drying up.
http://www.huffingtonpost.com/2011/03/02/nfl-union-tv-dispute-federal-judge_n_830154.html

while this sucks for the owners it isn't going to break them. sure it is a huge some of money they are losing, but it isn't like they were going from living large with this money to being flat broke. most owners are worth tens and hundreds of millions of dollars if not more already.

they are still in a better position than most players. so many of these players went out and did the celebrity living crap and have no money at all saved. the owners have groups of people making sure their bank accounts stay fat.

players are still in a much worse place than the owners and the owners still hold most of the cards

lostknight
03-02-2011, 10:04 AM
while this sucks for the owners it isn't going to break them. sure it is a huge some of money they are losing, but it isn't like they were going from living large with this money to being flat broke. most owners are worth tens and hundreds of millions of dollars if not more already.


That's not the issue. Almost all of these owners have funded some percentage of their stadiums. The most successful ones own their stadiums outright, which is about the only difference between a team Dallas (worth well over a billion) and Denver. The problem is to pull that off, they have to do what all of us have to do - get a mortgage. The terms of that mortgage are protected by covenants. That usually includes a covenant about the owner being in default if anything causes a material drop in their earnings. The stadiums are the backbone for about 50% of the local revenue, and to grow that revenue, they needed to expand them.

Loosing the stadiums, having to put up more revenue, or a interest rate hike can do huge massive issues.

That could put them in a world of hurt really quickly.

BroncoMan4ever
03-02-2011, 10:09 AM
That's not the issue. Almost all of these owners have funded some percentage of their stadiums. The most successful ones own their stadiums outright, which is about the only difference between a team Dallas (worth well over a billion) and Denver. The problem is to pull that off, they have to do what all of us have to do - get a mortgage. The terms of that mortgage are protected by covenants. That usually includes a covenant about the owner being in default if anything causes a material drop in their earnings. The stadiums are the backbone for about 50% of the local revenue, and to grow that revenue, they needed to expand them.

Loosing the stadiums, having to put up more revenue, or a interest rate hike can do huge massive issues.

That could put them in a world of hurt really quickly.

that makes more sense. the way i had been hearing it was that the owners had stockpiled money thinking we better save up for when we lockout the players so we can keep living our normal lifestyles without the NFL revenues for a time.

Kaylore
03-02-2011, 10:18 AM
They can, but the financial risk of an eventual loss could be pretty substantial, in terms of paying back the money with interest, paying damages to the players, if all this happens with no football being played they could be facing some huge bills in top of their normal debt payments.

Except it's probably all covered under their billion dollar insurance policy. Besides, that's a short term investment if it means dragging things out for a better long term deal. They'll stir the pot knowing it will bleed the players dry.

Rohirrim
03-02-2011, 10:19 AM
I guess Carson Palmer isn't worried. ;D

bronclvr
03-02-2011, 10:22 AM
That's not the issue. Almost all of these owners have funded some percentage of their stadiums. The most successful ones own their stadiums outright, which is about the only difference between a team Dallas (worth well over a billion) and Denver. The problem is to pull that off, they have to do what all of us have to do - get a mortgage. The terms of that mortgage are protected by covenants. That usually includes a covenant about the owner being in default if anything causes a material drop in their earnings. The stadiums are the backbone for about 50% of the local revenue, and to grow that revenue, they needed to expand them.

Loosing the stadiums, having to put up more revenue, or a interest rate hike can do huge massive issues.



Some of these reasons can be the issues as to why the Owners need to win this-

Dedhed
03-02-2011, 10:39 AM
Regardless of what the actual implications are, this takes some bargaining power away from the owners, which is a good thing for the chances of a CBA getting hammered out.

This particularly impacts the smaller market teams who live on TV money anyway. For them, a lockout where they're still getting that money is almost better than having to put on games and pay players. They're motivated to get into a lockout.

Without that TV money, there are now some owners who will be much more uncomfortable about going into a lockout.

lostknight
03-02-2011, 10:45 AM
Regardless of what the actual implications are, this takes some bargaining power away from the owners, which is a good thing for the chances of a CBA getting hammered out.


Increasing leverage for the other side doesn't necessarily make things better. It just means both sides have trenches instead of just one.


This particularly impacts the smaller market teams who live on TV money anyway. For them, a lockout where they're still getting that money is almost better than having to put on games and pay players. They're motivated to get into a lockout.


The smaller market teams are looking at what's occuring the NBA and MLB right now, and are very determined to make sure that they can eek out some profit. The only way that happens is if salary costs are reduced, significantly.

Without that TV money, there are now some owners who will be much more uncomfortable about going into a lockout.

True, but a CBA that locks in the current percentages will basically reduce the value of their franchises in half. Take a look at It's All Over fatman's writeup. It's exceptionally good on explaining this.

The owners have the option - and perhaps the fiduciary duty - to lock up emergency capital flows now. That will cost more then these agreements would have, but the option is still there.

Also, it's not clear that Doty has the authority to change the contracts with the NFL. It's far more likely that Doty will end up multiplying the penalties by four (coming out to around 36-50 million dollars). The NFL will immediately appeal that - it's hard to argue that a CBA not in legal force for a year somehow should mandate terms in years not governed by that CBA - and my guess is that it won't get sorted until after this entire process is done.

peacepipe
03-02-2011, 11:05 AM
I love how some here think they know more than any judge, let alone think they know more then doty. in the end you guys may be right that she gets overruled but until then her ruling stands.

footstepsfrom#27
03-02-2011, 11:10 AM
So if there is a lockout, Denver gets the 2nd pick again in the 2012 draft?

bendog
03-02-2011, 11:32 AM
smaller market did just fine so long as the nfl shared all the revenue.

Old Dude
03-02-2011, 11:59 AM
I don't purport to understand any of it. But if this goes the way of 90% of management-labor disputes, it won't get resolved until someone is actually bleeding because neither side wants to blink.

bendog
03-02-2011, 12:02 PM
I don't purport to understand any of it. But if this goes the way of 90% of management-labor disputes, it won't get resolved until someone is actually bleeding because neither side wants to blink.

yep. The players will lose their houses, but now, perhaps, some owners will face defaut over their stadium loans, or at least face refinancing at more expensive terms, so perhaps the owners will have some motivation to actually reach some compromise.

El Minion
03-02-2011, 03:18 PM
Doty could block TV payments and award money damages (http://profootballtalk.nbcsports.com/2011/03/02/doty-could-block-tv-payments-and-award-money-damage/)

Posted by Mike Florio on March 2, 2011, 3:42 PM EST
http://nbcprofootballtalk.files.wordpress.com/2011/02/doty1.jpg?w=136Several of you have asked for an explanation regarding the next steps in the lockout insurance case. The easy answer (for us) is to tell you that you should have watched the opening segment of today’s ProFootballTalk Live, and that you still can.

The harder answer (for us, since it requires typing) is to spell it out right here.

Judge Doty has ordered another hearing because the two sides previously had been focused on the question of whether the CBA was violated by the league’s renegotiation of the broadcast deals to include and/or beef up language ensuring that the billions in rights fees would flow in the absence of football games being played. With a violation established, the question becomes how to fix the situation.

In most pieces of civil litigation, a prevailing plaintiff gets an award of money. In this case, the monetary damages would be calculated by determining the amount of money that the league left on the table when insisting on “lockout insurance,” and then by giving the players 59.6 percent of it.

Another related possibility would be to determine the actual cash value of the lockout insurance, and to require the league to give the players 59.6 percent of it.

The union will prefer an order preventing the money from being paid, or alternatively paying the money into escrow. If the league won’t be getting the use of the money during a lockout, the better approach would be to not have the money paid out at all, in order to avoid the requirement to pay interest on it later.

It’s also possible that Judge Doty will both block the TV money and order payment of 59.6 percent of the money that the league left on the table. Judge Doty’s ruling illustrates a wilful and deliberate violation of the league’s duty to use good faith and best efforts to maximize shared revenue, with the league securing instead of the highest possible rights fees a term aimed at helping the owners and hurting the players. Judge Doty reasonably could conclude that the NFL won’t be permitted to reap the rewards of its strategy — and that the players should be compensated for the league’s failure to get top dollar for the bundle of rights.

The league would contend that such an approach represents something more than compensation, since the penalty would include paying the union for obtaining lockout insurance in lieu of maxing out revenue and then preventing the league from having the benefit of the lockout insurance. It’s possible, however, for Judge Doty to tie two remedies to arguably separate aspects of the CBA violation.

First, Judge Doty could find that the NFL violated the CBA by failing to get the most money possible in rights fees. Second, Judge Doty could find that the NFL violated the CBA by using its cooperative relationship with the union to finagle a term that helped the owners at the expense of the players. Thus, it possibly makes sense both to make the players whole and to prevent the league from receiving the money.

The union would likely be (and should definitely be) happy to get only an injunction against the payment of the TV money, since that would keep $4.3 billion out of the league’s war chest.

Of course, and as Albert Breer of NFL Network pointed out in his Wednesday visit to ProFootballTalk Live, the league undoubtedly will appeal Judge Doty’s decision to the federal appeals court with jurisdiction over Minnesota. That process could take months; surely, the money from the networks at a minimum will be held in escrow until the appeal is resolved.

Bottom line? Once the league processes the impact of the ruling, the league should get serious about working out a fair compromise, taking into account the diminished leverage resulting from Tuesday’s ruling.

El Minion
03-02-2011, 03:51 PM
Without Good Faith: Explaining The Critical Ruling Against The NFL (http://deadspin.com/#%215774550/without-good-faith-explaining-the-critical-ruling-against-the-nfl)

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(http://deadspin.com/people/barryap/) http://cache.gawkerassets.com/assets/images/commenter/0/3364_32.jpg (http://deadspin.com/people/barryap/) Barry Petchesky (http://deadspin.com/people/barryap/)
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In briefest terms, a federal judge's ruling found (http://www.scribd.com/doc/49821268/Lockout-Insurance-Case-Decision) that the NFL's curious broadcast contracts for the 2011 season amount to a "war chest" the league improperly obtained specifically for a lockout. But what does this mean for fans, players and owners, and what happens next? Let's try to make a very complicated situation as simple as possible.

What did the judge say?
It has nothing to do with football, and everything to do with contract legalese. U.S. District Judge David Doty ruled that the NFL was not acting with the interests of the players in mind when it renegotiated its current TV contracts, but rather with an eye toward a lockout. That's impermissible, so those TV contracts — and the billions of dollars that come with them — won't keep the owners rolling in dough if there's a prolonged lockout. An important byproduct of the ruling: proof that the league has been planning for this work stoppage for years.

What's the controversy over the contracts?
There is language in the league's deals with the networks and DirecTV that ensures two things: A) money from rights deals will keep flowing to the league, even if there is no football played, and B) much of that money will not have to be repaid quickly, or at all, if there is a lockout.

How much are we talking about here, and why does it matter?
Somewhere in the neighborhood of $4 billion, which would represent the largest piece of the league's assets in the event of a lockout. The owners were counting on this, because if there's no football, their own revenue streams largely dry up, and they have their own debts and obligations to keep up with.

How exactly did the league stockpile that much cash?
In both 2009 and 2010, the league renegotiated its TV contracts to include language specifically addressing a work stoppage. For example, "of the total amount payable [from DirecTV] in the event of a canceled season, 42% of that fee is nonrefundable and the remainder would be credited to the following season." If there's a lockout, the NFL gets to keep 42 percent of its fees from DirecTV, whether there's football or not. This language did not exist prior to the restructuring of contracts.

Isn't that just good business sense?
That's what the NFL argued. Earlier this month, special master Stephen Burbank (essentially an independent arbiter appointed by the terms of the last CBA) ruled that the league acted "in good faith" and "consistent with sound business judgment" when it renegotiated the contracts. The NFL's argument, which Burbank agreed with, was that it acted out of self interest as a single organization.

What about the players?
That's the crux of Doty's ruling yesterday. He ruled that Burbank misinterpreted the "sound business judgment" clause, because the league is bound by the CBA and legal precedents to also have the interests of the NFLPA in mind. In deciding that the league was not acting in good faith when renegotiating the TV deals, those contracts are unenforceable.

How can someone judge "sound business judgment?"
By pointing out that the league left money on the table. In order to get themselves guaranteed money during a lockout, the NFL took less money than it could have had in the years before and after 2011. One example: DirecTV would have paid more in 2009 and 2010 to have the lockout language removed from the contract; the league declined. Another example: In the event of a lockout, the league is willing to extend its existing contracts another year. Since new contracts are typically more lucrative, the league was willing to pass up an entire year of increased revenue to get its 2011 money.

What happens now?
Nothing, yet. There will be another hearing, yet to be scheduled, to decide what to do with the TV contract money. The NFLPA has been arguing it should be placed in escrow until a labor deal is reached. And even before that's decided, the league may appeal the judge's ruling.

What does this mean?
For the players, leverage. The one thing the NFL has always had over them is its stash of money. The owners could hold out much longer than the players in any work stoppage, the league reasoned, and pry more favorable terms out of a workforce eager to get back on the payroll. Now the two sides are on a slightly more even footing. If the league can't get that TV money, it's more likely to come to the bargaining table to work things out sooner. Without taking sides, Doty's ruling lessens the chance of a prolonged lockout.

SonOfLe-loLang
03-02-2011, 03:54 PM
Maybe because i can be a bit of a populist, but i think this sounds fair. Plus, as i said in another thread, when two children fight over a toy, you take it away until they compromise and play nice.

Take it away. Play nice.

Lets play football

lostknight
03-02-2011, 04:25 PM
I love how some here think they know more than any judge, let alone think they know more then doty. in the end you guys may be right that she gets overruled but until then her ruling stands.

We know enough to know that Doty is a he at least.In this case I actually read the ruling, and have a bit (not a lot I grant you) of background in law (before I saw the light and settled for a CS degree and a History degree instead).

Doty looses jurisdiction on Friday, so it will be irrelevant before long.

El Minion
03-02-2011, 07:07 PM
We know enough to know that Doty is a he at least.In this case I actually read the ruling, and have a bit (not a lot I grant you) of background in law (before I saw the light and settled for a CS degree and a History degree instead).

Doty looses jurisdiction on Friday, so it will be irrelevant before long.

Yes unless the Union decertified before then, which will keep it in Doty's jurisdiction. But if Mike Florio is right, that the union still thinks Doty will remain post tomorrow midnight, the NFL players will cave just like the NHL union did several years ago.


Union doesn’t agree that expiration of CBA ends Judge Doty’s role (http://profootballtalk.nbcsports.com/2011/02/17/union-doesnt-agree-that-expiration-of-cba-ends-judge-dotys-role/)
Posted by Mike Florio on February 17, 2011, 7:02 AM EST
doty1

And the inability of the NFL and the players’ union to agree on anything continues.

The league believes that, when clock strikes 12 on the early morning of March 4 and the current Collective Bargaining Agreement expires, the NFL will forever escape what it believes to be the biased rulings of Judge David Doty.

As to any lingering claims or issues, such as collusion and “lockout insurance,” the expiration of the labor deal doesn’t provide the league a silver bullet. Beyond that, however, we’re told that the union believes the mere expiration of the agreement won’t terminate Doty’s role when it comes to interpreting the next deal.

It’s yet another attempted pressure point for an organization that doesn’t currently have much leverage. And it’s not clear how this skirmish will play out.

The current labor deal actually was the settlement agreement of the antitrust lawsuit filed by the players after the failed 1987 strike and decertification of the union. With the league sufficiently chagrined by Doty’s rulings to try to have him removed for leaning too far toward the players’ interests, it’s no surprise that the league believes/hopes that with the agreement expiring they’ll be able to finally get him off the case. But the union easily can claim that the settlement agreement governs the relationship between the parties not until any one version of the agreement expires, but until the two sides agree that the settlement agreement no longer governs the relationship.

So, basically, it’s yet another area on which the two sides will agree to disagree.

El Minion
03-02-2011, 07:18 PM
All of the NFL players gains (e.g. free agency, players share of total league revenues, minimum salary floors, etc.) have come through litigation, not one from negotiations and mediation. If the union doesn't decertify by tomorrow the players are screwed.

The NFLPA's power play: Cease to exist (http://sports.espn.go.com/espn/commentary/news/story?page=munson/110302)

When the union decertifies, as it will shortly, the landscape changes dramatically
By Lester Munson
ESPN.com

The expiration of the collective bargaining agreement that governs the NFL arrives at 11:59 p.m. ET Thursday, and the players' union is about to decertify. The NFLPA's decision to end its existence as a labor organization could come at any moment. The union's decision and its timing raise significant questions about the relationship between the players and the owners, as well as the status of the NFL's 2011 season. Here are some of the questions and their answers:

The players and the owners are still working with a federal mediator and the CBA hasn't yet expired. Why decertify now? Why not wait until they have exhausted any chance of negotiating an agreement?
There are two reasons. First, if the union does not decertify now, before the current bargaining agreement expires, it cannot decertify for six months, according to a clause in the CBA. There is no reason for the players to wait until September to use their best weapons. (We'll get to exactly what those weapons are in a moment.) So far, it appears that bargaining as a union has accomplished nothing.

Second, and perhaps more importantly, by decertifying now, before the expiration of the CBA, the players are trying to stay in the Minneapolis courtroom of U.S. District Judge David Doty, who over the years has issued several rulings that were unfavorable to the owners. That includes a ruling late Tuesday concerning the NFL's television network contracts. (More about that later, too.) Doty, 82, an ex-Marine who was appointed to the federal bench by Ronald Reagan in 1987, has presided over disputes between the players and the owners since the early '90s. Under his guidance, the players and the owners made the deal that is now expiring, a deal in which both sides prospered at levels beyond expectation. But Doty's jurisdiction over the NFL's labor case expires with the current agreement, meaning Thursday night. If the players wait and decertify later, they would have no chance of staying in Doty's courtroom and would have to take their chances before another judge. But if they decertify before midnight Thursday and then immediately file antitrust litigation, that litigation automatically goes to Doty, who will maintain control of it until its conclusion even if the CBA is no longer in effect.

[+] Enlargehttp://a.espncdn.com/photo/2009/1111/espn_g_doty1_sw_sq_300.jpg (http://sports.espn.go.com/espn/commentary/news/story?page=munson/110302#)<cite>Getty Images</cite>Judge David Doty, shown here in a 1992 portrait, might hold the key to the 2011 NFL season.


How will the owners react to decertification and litigation?
It will not be a surprise for the owners, but they will not be happy. They will quickly claim that the decertification is a "sham," which is the word the league used in a complaint at the National Labor Relations Board. They will say that the players will continue to act like a union, look like a union and sound like a union. They will say that it's a labor dispute and does not belong in a courthouse. And they will say that the only purpose of the decertification is to keep the litigation in Doty's courtroom. They will also say, as they have said previously, that Doty is the wrong judge. During Doty's consideration of the Michael Vick bonus dispute, the owners and their lawyers, in a highly unusual move, attacked Doty as biased and accused him of misconduct in his conversations with the players and their lawyers.

It's safe to assume, then, that Doty's decision Tuesday about the NFL's television contracts fits into the league's unhappiness with his role?
The judge certainly indicated on Tuesday that he is leaning toward the players in the network money dispute (http://sports.espn.go.com/nfl/news/story?id=6172379). Although the NFL professed to be "prepared for any contingency" in the labor bargaining, the NFL could not be happy with Doty's statements that criticized the league for using TV contracts "to advance its own interests and harm the interests of the players." It is exactly what the NFL did not want to hear from Doty. League officials worked for two years to renegotiate the network contracts to provide $4 billion in income for the owners during a lockout. Although Doty has not yet ordered the money into an escrow, his ruling is a step in that direction. It is one more adverse ruling on the list that the NFL will use as it continues to attack Doty as biased in favor of the players. But there is a solid basis for Doty's preliminary ruling. The agreement between the players and the owners requires the owners to obtain maximum income from television networks that will be shared with the players, and it is clear that the renegotiations the owners initiated in 2008 were designed to provide lockout insurance for the owners.

Is there any validity to the owners' claims that decertification is a "sham" and that Doty is biased?
Probably not. The owners claimed "sham" the last time the union decertified in 1989. The claim did not work then, and it likely will not work now. The owners do not relish their plight in antitrust litigation and will say anything that might help to avoid it. They'll claim "sham," hoping that Doty or judges in a higher court might somehow fall for the arguments. Although a number of Doty's earlier rulings have been in favor of the players, those rulings were not the result of any bias. They were based on the facts and the law, and they were unfavorable to the owners because the owners were wrong. I have worked among lawyers and judges through the U.S. for more than 40 years, and Doty is one of the finest jurists I have encountered. He is fair, equitable and just, and he gives both sides ample opportunity to state their positions before he makes a ruling.

[+] Enlargehttp://a.espncdn.com/photo/2011/0302/espn_a_tv1x_300.jpg (http://sports.espn.go.com/espn/commentary/news/story?page=munson/110302#)<cite>AP Photo/Jeff Roberson</cite>Judge Doty just backed the union in a dispute over the NFL's television revenue.


Let's back up a moment. How does it happen that these cases always go to Doty's courtroom?
Doty presided over the players' momentous courtroom victories in the early '90s. Although a jury of six women made the most important decision, the judge made additional rulings that helped the players expand on the jury's verdict. The courtroom triumphs gave the players the leverage they needed to extract free agency and other benefits from the owners as, with Doty's guidance, the two sides negotiated what became the agreement of 1993. The litigation battle left the players suspicious of the owners and their intentions. The players were justifiably worried that the owners would not abide by the terms of the agreement. To make sure that they could enforce it, the players insisted that any disputes over its terms must be decided by Doty. Instead of the usual arbitration procedure that is found in most labor contracts, the 1993 settlement specifies that all grievances and problems must be submitted first to a "special master" selected jointly by the owners and the players, and then to Doty. Numerous disputes have followed the path to Doty for his ultimate decision. He has ruled both for the players and for the owners in these various disputes, but the players and their lawyers know that they will receive fair treatment in Doty's courtroom. However, the process that leads to Doty's door expires with the termination of the current CBA.

Still, won't it look bad for the union if the players decertify in the middle of negotiations? After all, as late as Wednesday, they were still in mediation sessions. (http://sports.espn.go.com/espn/commentary/news/story?page=munson/110225)
Perhaps, but the negotiations are not going well and an agreement does not appear likely anytime soon. The owners are poised and ready for a lockout. They have been preparing for a lockout for at least three years, renegotiating contracts with five networks to include lockout clauses and inserting lockout provisions in coaches' contracts. It is clear that they are willing to sacrifice an entire season to force the players to accept a reduced share of NFL revenue. In the face of that threat, union decertification will give the players new weapons in the lockout battle, weapons that are not available to a labor union. Relying on these weapons, they hope to be able to make a deal with the owners that they cannot make now in collective bargaining and mediation.

Ahh, the aforementioned weapons. So what are they? What exactly do the players gain when they decertify?

[+] Enlargehttp://a.espncdn.com/photo/2011/0302/espn_a_smithd_200.jpg (http://sports.espn.go.com/espn/commentary/news/story?page=munson/110302#)<cite>AP Photo/Alex Brandon</cite>NFLPA executive director DeMaurice Smith might not officially have a union to direct in the next day or two.


The weapons are an antitrust lawsuit and an injunction that would stop the lockout. When they are an active union, the players cannot file an antitrust lawsuit and they cannot ask for an injunction. Labor unions are legally barred from such actions. When the players decertify, they become a group of individuals instead of members of a union. Their new status allows them as individuals to file an antitrust suit against the owners and to ask for an injunction that would stop the lockout. It's a difficult lawsuit, but it's a lawsuit the players can, and ultimately will, win. They will be following the litigation path that they followed under the leadership of the late Gene Upshaw, a path led them to free agency, skyrocketing salaries, vastly increased health and disability benefits, and 18 years of labor peace.
The lawsuit and the demand for an injunction will be based on the premise that the NFL is a monopoly. The league and its lawyers will never admit that the NFL is a monopoly, but it is the only enterprise in the business of buying the services of elite football players. There are other professional football leagues (the UFL and the CFL), but there is only one NFL with five television network contracts and more than $9 billion in annual income. The NFL clearly enjoys a stranglehold on its market. A little more than a year ago, the NFL tried to persuade the U.S. Supreme Court that it is not a monopoly that should be subject to antitrust laws. In American Needle Inc. v. NFL (http://sports.espn.go.com/espn/commentary/news/story?page=munson/100524), all nine justices rejected the NFL's claim, a highly unusual outcome in a frequently divided court. Like any monopoly, the NFL has total control of the market for pro football. In numerous previous NFL cases, that has been enough for the players and others to use the antitrust laws to push the owners into agreements that were not otherwise possible.

Will these weapons -- the lawsuit and the injunction -- work? Will they solve the problem and save the 2011 season?
Decertification and antitrust litigation probably have a better chance of producing an agreement than the current negotiations and mediation do. There is little doubt that the players will win at a trial of their antitrust lawsuit against the owners. But a trial is months, or even a year, away. There is, however, considerable doubt that the players will be able to obtain an injunction, a court order that would require the owners to end their lockout. An injunction is the most drastic action that any judge can take. Injunctions are issued only in emergencies when there is no alternative. The owners and their lawyers will argue that there is no emergency, that there is no reason for a court order on a lockout, and that the court should slow down and wait for a trial. The players and their lead attorney, Jeff Kessler, will face a serious challenge in persuading a judge that they are entitled to an injunction. It could happen, but it is not likely.
But the request for the injunction will bring players and owners into the courthouse and could then lead to negotiations and a settlement. Facing the possibility of an injunction, the owners might be forced to make an offer that the players can accept. The CBA that has governed the league for 18 years was the result of courthouse conferences with the judge helping in the negotiations.

At the end of the day, just how powerful are these weapons of decertification and litigation that the players can use?
The best way to determine the answer to this question is to look back at the NHL lockout of 2004-05 that resulted in the loss of an entire season. The NHL players bargained. The owners bargained. The bargaining went on and on. The hockey players' union never decertified and never filed antitrust litigation against the owners. In other words, the players never used their most effective weapons. They endured a lockout that was about to enter its second season; and, finally, they crumbled and submitted to a salary cap. The lockout worked well for the owners and allowed them to achieve their objectives.

The NFLPA, as it decertifies and litigates, is trying to avoid what happened to the hockey players. Bargaining as a union in the face of a lockout is not a good situation for a union. Decertification and litigation offer a promising alternative and could easily produce an agreement.

What is the owners' next move, after the union decertifies and files litigation?

[+] Enlargehttp://a.espncdn.com/photo/2011/0302/espn_ap_rgoodell1_300.jpg (http://sports.espn.go.com/espn/commentary/news/story?page=munson/110302#)<cite>AP Photo/Alex Brandon</cite>NFL commissioner Roger Goodell spent Wednesday in one more mediation session.


The owners will respond on two fronts. First, they will resist any attempt by the union to return to Doty's courtroom. They will ask Doty to remove himself from the litigation, claiming he is biased against them. It is almost impossible to dislodge a federal judge from a case that is assigned to the judge's courtroom. Federal law simply does not provide any avenue for removal of a judge who, like Doty, has a long history in the litigation. Still, if Doty insists on keeping the case in his courtroom, the owners will appeal his decision.

Second, the owners will pursue the complaint they filed at the National Labor Relations Board on Feb. 11 in which, anticipating both decertification and litigation, they said that the players never intended to bargain and always intended to decertify and to litigate. They will argue to the NLRB that the players' reliance on decertification and litigation is a violation of the rules that govern collective bargaining. Both of these owner maneuvers will continue into the summer and the fall before any final decision is reached.

Whew! OK, what's the best guess at what will happen next?
Within a few days, the players will try to bring the owners before Doty and ask for the injunction that will stop the lockout. It could happen within a day or two. Although that injunction will be the specific issue of the day, remember that Doty is also considering the separate case in which the players are attacking television contracts that include lockout clauses requiring the league's network partners to pay the NFL even when there are no games. They're also asking Doty for an injunction in the TV case, a court order that would prevent the networks from paying $4 billion to the NFL for games that are not played.

With both cases in his courtroom, Doty would be in a position to use his decisions as a wedge to bring the players and the owners into settlement discussions. Will he grant one or both of the injunctions? The uncertainty over his decisions is the kind of thing that frequently leads to productive settlement conferences. In subtle but unmistakable ways, Doty will try to lead the opposing sides to a settlement. It could work. But if there is no settlement, it is difficult to imagine that Doty would give the players two injunctions in a single dispute. One injunction is unusual. Two are unlikely. My guess is that he will issue the injunction that bars network payments to the league for games not played, and will then encourage additional settlement discussions.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

Boobs McGee
03-02-2011, 07:50 PM
We know enough to know that Doty is a he at least.In this case I actually read the ruling, and have a bit (not a lot I grant you) of background in law (before I saw the light and settled for a CS degree and a History degree instead).

Doty looses jurisdiction on Friday, so it will be irrelevant before long.

I have to know. You SEEM like a fairly intelligent (and I mean that in the literary sense) person, but everywhere you post, you incorrectly use the word loose. Are you doing this on purpose? I honestly can't tell.